Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C17/99(DLA) (30 June 1999)

 


Decision No: C17/99(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

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 10 July 1996

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 (DAT) which held that claimant was not entitled to either component of the Disability Living Allowance (DLA).
2. Briefly, the facts are that he made a claim for DLA in November 1995 on the grounds that he suffered from back pain, anxiety, depression and alcoholism. A report was received from his GP in January 1996, and as a result the Adjudication Officer decided he was not entitled to either component of DLA. This was confirmed by a different Adjudication Officer who reviewed the decision, but did not revise it. Claimant appealed to a DAT, his grounds of appeal were set out clearly as:

"I am virtually unable to walk because of physical disability caused

by low back ache, and severe pain in my left leg and foot. If the

self assessment form claimed I could walk 400-500 yards this is

incorrect because it should have been maximum 40 -50 yards only.

The physical exertion used to get to the clinic to be examined and

having to take off his shoe and put it on, by himself brought on a

faint attack and he had to receive water and rest following the

examination. Normally the shoes and socks are fitted by Mrs McC...

in the morning but no help was given at the examination.

I am currently a day patient in Armagh at St Lukes Hospital and attend

Dr C( the consultant psychiatrist and also Mrs M( McS...

a social worker. This is for counselling and therapy for alcohol

dependency and severe behavioural problems.

At night I have to be watched by my wife or children to stop me from

going to the kitchen to get tablets for back pain, or ulcer tablets,

or nerve tablets in case I take too many of them. During the day I

am visited regularly by my wife who either calls on the house or

sends someone to see if I am OK.

I cannot cook any meals for myself and my wife leaves a sandwich in

the fridge for me to eat if I feel hungry. I am not allowed to use

the kitchen oven or cooker."

3. The Tribunal dismissed the appeal and gave reasons as follows:-

MOBILITY COMPONENT

"We prefer the General Practitioner's evidence as being the more

reliable as to appellant's walking ability. As the General

Practitioner indicated that in his opinion, appellant could walk

400-500 yards on level without severe discomfort and given

appellant's medical complaints we believe that the appellant could

walk a reasonable distance in reasonable time, speed and manner

without severe discomfort on average terrain. No evidence that the

exertion of walking would cause danger to life or serious

deterioration to health. Tribunal also satisfied that appellant can

take advantage of his walking faculty outdoors, most of the time,

without guidance/supervision."

CARE COMPONENT

"The Tribunal did not accept appellant's evidence as to his

limitations as reliable. We believe that the General Practitioner's

opinion is a more accurate assessment as per his factual report

attached to appeal submission. Accordingly, given appellant's

medical condition we do not accept that he is so severely

disabled, physically/mentally or as to require attention for a

significant part of the day or frequent attention with bodily

functions by day or prolonged/repeated attention with bodily

functions by night. We appreciate the appellant's comments that

he has never cooked or even made a cup of tea or boiled an egg.

However, the fact that he has not done so does not mean that he

could not do so. We find no physical or mental impairment which

would prevent him from preparing a cooked main meal if he

had the ingredients. We are also satisfied that appellant does

not have night needs requiring any attention with bodily functions

or someone to be awake for prolonged periods/frequent intervals to

watch over him to avoid risk of substantial danger."

4. In the findings of fact the Tribunal recorded "Attends Saint Luke's - there last Monday and going back next week. No other referrals to consultant/ specialists". In his evidence before the Tribunal the claimant said that his own GP referred him to a specialist for his leg problems and other pains, and that he had never discussed what he could do with his doctor. He discussed his problems with Doctor C(, the psychiatrist in Armagh.
5. The claimant sought leave to appeal to the Commissioner and I arranged an oral hearing of that application. Before the oral hearing of the application, the Adjudication Officer made the following written comments:-

"The tribunal decision relies on the evidence from Mr McC...'s

general practitioner as being more accurate than his own account.

In my submission it was open to the tribunal to come to this

conclusion, especially in view of the fact that they had the

opportunity of seeing Mr McC... and testing his evidence. I have

the following reservations, however.

The general practitioner's evidence was far from being entirely

against Mr McC..., identifying as it does alcoholism, low back

pain, anxiety, and depression. Otherwise, the general practitioner

was limited to answering specific questions on the enquiry form,

all of which relate to physical ability. Given the predominately

psychological nature of the disabilities, the Commissioner may wish

to consider whether the findings recorded by the chairperson are

adequate. There is nothing to indicate that the tribunal

considered requirements which were other than physical, whereas

the evidence points towards requirements which may be totally

psychological in nature. An example is to be found on page 17

of the self-assessment which reads "on bad days I would be so

depressed I would have to get my food given to me or I would not

eat at all..."

In my submission the totality of the evidence raised the issue of

requirements such as encouragement, which was accepted by the

Northern Ireland Chief Commissioner as capable of amounting to

attention with a bodily function in decision number

C46/96(DLA). Commissioners have also approved of a variety of

associated requirements, such as reassurance, cajoling,

encouragement, support, and comfort, some of which may be

relevant here. I submit that in cases which raise the issue

of psychological requirements it must be incumbent on the

tribunal to give full consideration to these needs and on

the chairman to make sufficient findings to show the degree

of consideration. The foregoing comments apply equally to the

lower rate of the mobility component. See for example, decision

number CDLA/1414/95."

6. At the hearing the claimant was not present nor was he represented. The Adjudication Officer was represented by Mrs Gunning. Mrs Gunning said that on the self-assessment form the claimant did not state his psychological needs and the Tribunal made no findings of psychological needs, nor did it appear to take any evidence from the claimant about such needs, although he claimed extensive care needs. She said that claimant's GP confirmed that the claimant's main disabling conditions were recorded as anxiety, depression and alcoholism and in view of this she would have expected the Tribunal to have given consideration to claimant's psychological needs. However there is nothing in the Tribunal's findings or reasons to indicate that it did so. She also said that the GP found that he could walk between 400 - 500 yards. The claimant said on the self-assessment form that he got confused and muddled and gets anxious and confused when he is out on his own. She suggested that decision C34/98(DLA) in respect of guidance would certainly qualify the claimant to the lower rate mobility in respect of supervision.
7. I have studied all the documents and have considered all that has been said in the various comments, such as "General Practitioner has not verified leg/ foot/hand pains" or "No other referrals to consultants/specialists". It was quite clear from the evidence that claimant was an alcoholic who suffered from anxiety and depression. There was evidence from a State Enrolled Nurse that he suffers from mood swings, depression and a poor sleep pattern. The claimant does not wash himself very often and hardly ever changes his clothes. In his claim form, claimant says that he takes fits of depression. He would cry and feel in bad form and be moody. He needed help to calm down and make him feel safe. He also said he needed help to go to the toilet and be lowered onto the toilet seat and helped to get up again. He needed help getting dressed and that he could not bend to put on his shoes and socks. He also drew the Tribunal's attention to this complaint in his application for his leave to appeal to the Tribunal.
8. I have considered the findings of the Tribunal. It has found that he is anxious, depressed, suffers from alcoholism, back pain, and then goes on to find that he has no entitlement to DLA, all on the strength of a GP's report in form DLA389.
9. I have considered the need for encouragement which is clearly evident by the fact that he seldom changes his clothes and never washes, and that he never makes a meal, or even boils the kettle. It is not sufficient for the Tribunal to say if he had the ingredients there is no reason why he could not do this. In fact, it is quite clear that he would need to be motivated and need encouragement and motivation to do the simplest task. The Tribunal clearly erred in not taking that into account as it also erred in not taking into account supervision which he required when out walking.
10. At the hearing I granted leave to appeal. I am satisfied that I can give a decision without a further hearing. I find that the Tribunal erred as I have said above, I therefore allow the appeal set aside the decision of the Tribunal.
11. I think it is a proper case in which I should give the decision, which the Tribunal should have given. I have had on previous occasions to refer to the inadequacy of form DLA389 in respect of someone who suffers from a mental illness and someone who is in claimant's position.

As that was the only medical evidence which was before the Tribunal, it is obligatory on me to seek some evidence because my function, as the Tribunal's function, is inquisitorial. The Tribunal knew that he was treated by a Consultant Psychiatrist at St Luke's Hospital but passed that over by merely saying that there were no other referrals. I obtained a report from Doctor C(, the Consultant Psychiatrist at St Luke's Hospital. He records that the claimant continues to attend the addiction service regularly for individual counselling sessions and support group sessions, and he has attended 30 to 40 outpatient therapy sessions in the past 2 years and had two admissions. He records the claimant is an emotionally immature, uncommunicative man who is quite dependant on others. He is prone to anxiety and moodiness.

The Tribunal rested its whole decision on the preferred GP's evidence. There was no evidence from the GP other than a reply to certain questions which were completely irrelevant to claimant's complaints. I am satisfied on the evidence that he needs guidance and supervision when out walking and he is therefore entitle to the lower rate mobility. He is also entitled to the lower rate care in respect of his inability to cook without being motivated.

12. I therefore award the lower rate mobility and the lower rate care, from 27 November 1995.

(Signed): C C G McNally

COMMISSIONER

30 June 1999