Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C12/99(DLA) (22 December 1999)

 


Decision No: C12/99(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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of

Newry Disability Appeal Tribunal

dated 3 December 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of an Appeal Tribunal 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 7 June 1998.
2. The claimant originally made a claim for Disability Living Allowance on 7 June 1996. An award of the highest rate care component was made for the period 7 June 1996 to 6 June 1998. On 23 January 1998 the claimant submitted a renewal claim for Disability Living Allowance. She stated that she suffered from depression and anxiety. After a report was completed by her General Practitioner on 9 February 1998, an Adjudication Officer on 3 April 1998 disallowed the claim for both the mobility and the care component of Disability Living Allowance from and including 7 June 1998. The claimant on 12 May 1998 requested a review. On review a different Adjudication Officer on 13 June 1998 reviewed the decision of 3 April 1998 but did not revise it. The claimant then appealed to an Appeal Tribunal.
3. The Tribunal found the following findings of fact material to its decision in relation to the care component:-

"45 year old suffering from depression since 7.6.98.

Attending Dr S(, psychiatrist and self medicates.

She needs encouragement and motivation in virtually

everything she does according to her appropriate form."

4. The Tribunal made the following findings of fact material to its decision in relation to the mobility component:-

"45 year old suffering from depression. From 7.6.98 she

has been able to walk to the shops without severe discomfort

and without any risk to health from the exertion of so doing

for a reasonable distance, at a reasonable speed and for a

reasonable length of time.

Although suffering from depression she does not require

guidance nor supervision from another person while walking

outdoors."

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

"The only Vide of Record of proceedings (sic).

1. Hospital Admission - after physical domestic dispute.

Dr S...'s report is general and like the social worker's

reports corroborates the claimant's own evidence that she is

not unable or virtually unable to walk. She does not need to

be accompanied let alone guided or supervised when walking on

unfamiliar routes. She can self medicate.

We believe the representative, although not conceding this

component asked us to consider the care component.

She does not satisfy the criteria for the mobility component.

We accept the Representative's admission of the 3 reports

from Dr S... and M.. M(. The contents of same

are accepted by the Tribunal. The claimant's main problem

would be "encouragement and motivation". However there is

absolutely no evidence to indicate that she cannot prepare

a main meal for herself - there was no evidence adduced to

support any contention that the claimant would reasonably

require continual supervision throughout the day or someone

to be awake to watch over her during the night.

Although the Representative stated that she had "walked the

course" contemplating suicide. The Tribunal does not accept

his contention as Dr S... has her self-medicating which

makes ????? (sic) of the Representative's contention. Her

problems of a depressive nature do not substantiate criteria

for receipt of the care component."

6. The unanimous decision of the Tribunal in relation to the care component was in the following terms:-

"Appeals fails. The claimant has not satisfied the conditions

for the care component of Disability Living Allowance from and

including 7.6.98."

7. The unanimous decision of the Tribunal in relation to the mobility component was in the following terms:-

"Appeal fails. The claimant does not satisfy the conditions

for the mobility component of Disability Living Allowance

from and including 7.6.98."

8. The Chairman's record of proceedings was in the following terms:-

"List of Documents Considered (sic):

Both components are in dispute. General Practitioner notes

were perused by all parties. Mr Brady refers to page 6 para

5 and referred to Commissioner McNally's report and he had

specifically requested the last Tribunal to permit psychiatric

report he introduced. New evidence to be considered.

1. Dr J S... 21.10.98

2. M( M( 23.10.98

3. M( M( 14.10.98

Was a previous award of Disability Living Allowance - higher

rate care.

Dr S.. relatively recently into practice so specialist

medical evidence. Was required.

Dr S...'s report [3 x 75 ????) (sic) nightly].

Mr Brady referred to previous.

Care Component

Higher rate care was given originally.

Dr M...

Recent medical records being referred to:

I started getting in 2 1/2 years ago.

I broke down and couldn't cope. I don't want to leave house/

don't eat, don't sleep well - I would get up - make tea, watch

the night TV - rarely get full sleep. I've lost all confidence

- used to walk/shop alone become agitated in supermarket - I'm

fine in church due to quickness - I sometimes feel that life is

worthless. I was at the canal several times - thinking of

suicide. I have 2 young children and 24 year old son. I never

carried out any suicidal gesture -I've become agitated with the

children when they come home from school - it happens quite

often with them.

Question:

Can you deal with panic symptoms. Answer Yes. I send for my

friend but it has never happened on my own.

Diazepan - I take 3 per week x 10mgs - prescribed by Dr S....

I can walk alright physically.

Mr Brady raises Commissioner McNally's decision and sought

psychiatric report on foot of that case to be introduced.

Day to Day Care Mrs G(:

Q. Rise of own accord? A. Sometimes friend comes and

dresses the boys to get

them out.

Q. Weekends? A. Older son calls and helps.

Q. Last of day? A. Every day.

Q. How many days in

last week did A. Every day.

neighbour come?

Q. Cooking? A. Friend comes over. I

make the meal but have

left the rings on. I

have to concentrate on

checking things.

Q. Self medicate? A. Yes

Q. Bedtime? A. Prothiaden and go to bed,

read for a while and try

to doze off. I waken and

go downstairs to watch TV.

Mr M...

Q. During day? A. Usually sit there.

Q. T.V. A. I watch a bit it is not

"coming in".

Submission by Presenting Officer

-Brown C1 98 decision Para 8-

Representative stated consultant was last person - Dr

S... report speaks for itself.

Q but not specific on notification?

2 July 98 - Consultant allowed self-medication although

?????? (sic) tenderness? - Yes.

Q. Does she shop? A. Yes.

Representative asked the Tribunal to consider the care

component principally."

9. The question marks contained in both the reasons for decision and the record of proceedings seem to be references to indecipherable words. It is not satisfactory that the parties to the present proceedings before me do not have an accurate note of the Tribunal's reasons and the Chairman's record and I hope that steps will be taken in the future to ensure that these important documents are in a complete form when an appeal comes before a Commissioner. However, I conclude that in the present appeal I am not prevented from coming to the correct decision in spite of these obvious errors on the face of the record.
10. The claimant sought leave to appeal on the following grounds:-

"... The Tribunal failed to give an adequate statement of

the reasons for its decision.

The Tribunal accepted the admission of reports from Doctor

S... and M( M(. They also accepted that

"Encouragement and motivation" are part of my main problems.

However they did not go on to address these issues in relation

to how they might affect the criteria for D.L.A. Reassurance

and encouragement are part of my regime and the Tribunal do

not appear to have taken this into account when arriving at

their decision. Also the Tribunal have not gone into any

detail as to why the previous award of benefit was not

appropriate, particularly as there had been no improvement

in my condition."

11. A Chairman granted leave to appeal on 12 February 1999.
12. The claimant is represented by Mr Brady of the Welfare Rights Centre, Newry. The Adjudication Officer now concerned with the case is Mrs Moffett. The only issues identified in the appeal concerned the claimant's eligibility for the care component and it was not contended that there was an error in the Tribunal's decision in relation to the mobility component.
13. The legislation pertinent to this appeal is contained in section 72 of the Social Security Contribution and Benefits (Northern Ireland) Act 1992, the relevant portion of which is set out as follows:-

"72.-(1) Subject to the provisions of this Act, a person

shall be entitled to the care component of a disability

living allowance for any period throughout which-

(a) he is so severely disabled physically or mentally that-

(i) he requires in connection with his bodily

functions attention from another person for a

significant portion of the day (whether during a

single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for

himself if he has the ingredients;

(b) he is so severely disabled physically or mentally that,

by day, he requires from another person-

(i) frequent attention throughout the day in

connection with his bodily functions; or

(ii) ....; or

(c) he is so severely disabled physically or mentally that,

at night,-

(i) he requires from another person prolonged or

repeated attention in connection with his bodily

functions; or

(ii) ....."

14. Mrs Moffett supports the claimant's appeal and in particular, by letter dated 12 May 1999, made the following relevant submissions:-

"The appeal is made on the basis that the tribunal has

failed to give an adequate statement of the reasons of

its decision as it did not address issues such as the

need for reassurance, encouragement and motivation.

Reference was also made to the previous award and the

fact that there has been no improvement in her condition.

I would support this appeal for the following reasons.

In the Reasons for Decision it is recorded that Ms F('s

main problem would be encouragement and motivation. It is

also recorded:-

"....there is absolutely no evidence to indicate

that she cannot prepare a main meal for herself -

there was no evidence adduced to support any

contention that the claimant would reasonably

require continual supervision throughout the day

or someone to be awake to watch over her during

the night."

It would appear from the record of the decision that the

tribunal has not applied the correct test as there is no

indication that it was aware that a requirement for reassurance,

encouragement or motivation can be accepted as attention in

connection with bodily functions or even in connection with

satisfying the 'main meal test' - section 72(1)(a), (b)(i) and

(c)(i) of the Social Security Contributions and Benefits (NI)

Act 1992 refers.

In support of this I would refer to decision CDLA/895/94,

decision C4/99(DLA), in particular paragraph 7, decision

C46/96(DLA), in particular paragraph 5 and finally decision

CSDLA/80/96, in particular paragraph 7.

With regards to the point made about the previous award. It

is stated in the grounds of appeal,

"...the tribunal have not gone into any detail

as to why the previous award of benefit was not

appropriate, particularly as there had been no

improvement in my condition."

I would submit that the previous award was not consideration by

the tribunal. The issue before the tribunal was, ultimately,

whether Ms F... was entitled to disability living allowance

from, at the earliest, 7.6.98, the date of the renewal claim.

I would further submit that although it is not incumbent on the

tribunal to explain why its determination differs from that of

a previous decision and would refer to decision C40/98(DLA),

paragraph 12 to support this view, I would however submit that

it is incumbent on the tribunal to give reasons to explain the

outcome of the appeal so that it is reasonably obvious why a

previous award is not renewed, particularly when the claimant

contends that his condition remains the same or has worsened -

R(M)1/96, paragraph 15 refers.

Although there is nothing in the papers to indicate why the

previous award of high rate care component was made, I would

respectfully submit, for the reasons stated earlier, that it

is not reasonably obvious from the decision why the tribunal

did not renew the previous award."

15. In my view Mrs Moffett is correct in her submissions that the record of the Tribunal's decision gives no indication that the Tribunal was aware that a requirement for reassurance, encouragement or motivation can be accepted as attention in connection with bodily functions or in connection with satisfying the "main meal test". The Tribunal, in my view, has erred in law by not applying the correct test. However, I consider that it is appropriate to quote the former Chief Commissioner in his decision C46/96(DLA) (a case mentioned by Mrs Moffett in her written submissions) at paragraph 5 where he emphasised that "encouragement" is only relevant if it is not only given but also "reasonably required". He stated as follows:-

"5. ...it must be accepted that "encouragement" to perform

relevant functions may constitute attention for the purposes

of establishing entitlement to disability living allowance.

I would point out, however, that the mere proof of the

provision of such encouragement of the stipulated duration

or frequency, will not, in itself, be sufficient to establish

entitlement to the care component. As well as being related

to physical or mental disability the attention in question

must in all cases be "reasonably required", and it seems to

me that this is a matter of particular importance where

attention by way of "encouragement" is concerned. In my

view such attention ought not to be accepted as being

reasonably required unless it is established that, without

it, the claimant would probably not perform the bodily

function in question, and that, in consequence, his or her

general health or well-being would to some significant

extent be adversely affected." -(my emphasis).

16. In relation to the second point in the appeal, namely, the effect if any, of the previous award, Mrs Moffett has made a succinct and relevant submission, which in my view accurately sets out the legal position. It is not necessary for a Tribunal to explain why its conclusion differs from that of a previous decision but it is still necessary for a Tribunal to give reasons setting out why it has come to its conclusion. Mrs Moffett drew my attention to the following relevant words in Great Britain decision R(M)1/96 in which is set out the following statement of law which, in my view, is relevant to the present case:-

"15. It does however seem to me to follow from what is said

by the Court of Appeal in ["Kitchen and Others v Secretary of

State for Social Services [1993] NLJR 1370, a decision of the

Court of Appeal in England], that while a previous award

carries no entitlement to preferential treatment on a renewal

claim for a continuing condition, the need to give reasons to

explain the outcome of the case to the claimant means either

that it must be reasonably obvious from the tribunal's findings

why they are not renewing the previous award, or that some

brief explanation must be given for what the claimant will

otherwise perceive as unfair. This is particularly so where

(as in the present and no doubt many other cases) the claimant

points to the existence of his previous award and contends that

his condition has remained the same, or worsened, since it was

decided he met the conditions for benefit. An adverse decision

without understandable reasons in such circumstances is bound

to lead to a feeling of injustice, and while tribunals may of

course take different views on the effects of primary evidence,

or reach different conclusions on the basis of further or more

up to date evidence without being in error of law, I do not

think it is imposing too great a burden on them to make sure

that the reason for an apparent variation in the treatment of

similar "relevant" facts appears from the record of their

decision."

17. In light of this proposition of law, which I accept, I agree that Mrs Moffett is correct to concede that it is not reasonably obvious from the decision how the Tribunal came to a conclusion that was in direct contradiction to the earlier award. Accordingly I conclude that the Tribunal failed in this case to give an adequate statement of the findings and reasons for its decision and that its decision does not meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 as relevant findings of fact and reasons. In the circumstances I hold that the Tribunal has erred in law in this respect also.
18. For the reasons stated at paragraphs 15 and 17 the Tribunal's decision is erroneous in point of law. Accordingly I allow the appeal and set aside the decision of the Tribunal. I remit the case for rehearing and redetermination to a differently constituted Appeal Tribunal. The fact that this appeal has been allowed, however, should not be taken as an indication as to the eventual outcome of the appeal before the new Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

22 December 1999