Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C39/99(DLA) (3 April 2000)

 


Decision No: C39/99(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question law from the decision of

Belfast Disability Appeal Tribunal

dated 23 April 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of the Chairman, against the decision of the Tribunal to the effect that the claimant is not entitled to the care component of Disability Living Allowance from and including 27 July 1998.
2. On 14 December 1995 the claimant made a claim for Disability Living Allowance. On 18 January 1996 an Adjudication Officer awarded the claimant the higher rate of the mobility component of Disability Living Allowance from and including 14 December 1995. The claimant then made a request for a review on 19 February 1998, on the grounds that she considered she was entitled to an additional award of the care component. The usual self-assessment forms were filled in by the claimant, a report was completed by Dr B..., the claimant's General Practitioner, and the claimant was examined by an Examining Medical Practitioner on 1 July 1998. On 27 July 1998 a different Adjudication Officer reviewed the decision of 18 January 1996 but did not revise it. A review application was then received on 24 September 1998. After a further letter was received from the claimant and a factual report was completed by Dr B..., on 13 January 1999 a different Adjudication Officer reviewed the decision of 27 July 1998 but did not revise it. The claimant then appealed.
3. The Tribunal made the following findings of fact material to its decision in relation to the care component:-

"[The claimant] is a 52 year old lady who suffers from a number

of complaints including asthma, bowel problems and generalised

joint pain. She also appears to suffer from depression. She

has an ulcer also and is said to have classic symptoms of

fibromyalgia. It is also alleged that she has osteoarthritis

and osteoporosis.

The Tribunal reject entirely her evidence as totally unreliable

and totally exaggerated. They prefer the evidence of the

Examining Medical Practitioner and accept his findings that

there are no physical findings that should prevent her attending

to all her own care needs both during the day and at night. The

Tribunal find that she may well receive close attention by her

family but they are not at all satisfied that this is necessary.

The Tribunal find that she is and should be independent in

relation to washing, dressing, toileting, getting in and out of

bed, taking her medication and cooking.

The Tribunal specifically reject the evidence of Dr Br... (sic)

and prefer the evidence of the Examining Medical Practitioner

whose opinion is clear and concise and leaves little room for

doubt. The Tribunal noted that despite Dr Br...'s (sic) concern

for her mental condition he had not referred her for any

psychiatric help nor had he organised an occupational therapist.

The Tribunal are satisfied that this lady is able to make a main

meal for herself. She can make a cup of tea. She cannot

accurately give any reason why she should not be able to

organise and plan and carry out the basic task of making a main

meal for herself if she had the ingredients. The Tribunal are

likewise satisfied that she is totally independent at night.

She may well prefer to have other people in the house with her

but the Tribunal cannot find any reason why she should need

someone with her. The Tribunal have also specifically considered

the question of encouragement and reject her evidence in relation

to this. They specifically find that she does not need any form

of supervision or watching over. She is mentally competent and

alert and in the opinion of the Tribunal capable of living an

independent lifestyle."

4. The Tribunal gave the following reasons for its decision in relation to the care component:-

"The Tribunal have carefully listened to the evidence of [claimant]

and regrettably feel that this has been totally over exaggerated.

They have considered in detail her evidence in the submission.

They have contrasted the evidence of Dr Br... (sic) with that of

the Examining Medical Practitioner. They have preferred totally

the evidence of the Examining Medical Practitioner. They have

also examined in great detail the General Practitioner's notes

and records which do not appear to substantiate the degree of

disability outlined by [claimant] but rather supports the view

of the Examining Medical Practitioner. The Tribunal have found

that this lady is capable of looking after her own care needs

both during the day and at night. She does not need anyone to

be awake with her. She may prefer to have help from her family

but she does not need encouragement nor does she need supervision.

The Tribunal have rejected her evidence regarding a main meal and

cannot find any reason why she should not be capable of making a

main meal for herself. They are likewise satisfied that there

is no question of her needing assistance at night-time or anyone

to watch over her.

Accordingly for these reasons she is not entitled to high, middle

or low rate care component Disability Living Allowance.

The Tribunal find this is the current position and was the position

as at the 27th July 1998 and there were no grounds to review this

decision.

The Tribunal were concerned about the mobility component in this

matter in view of the distances [claimant] indicated she could

walk in her claim form and also in view of some of the notes and

some of the entries in the General Practitioner's notes and

records regarding treadmill tests. However they have decided not

to take any action in relation to same."

5. The Chairman of the Tribunal made the following record of proceedings:-

"[Claimant] appeared accompanied by her son and represented by

Mr Hughes from the Citizens Advice Bureau. Mr Cassidy appeared

for the Agency. The Chairman introduced the panel and explained

the procedure. All parties were given an opportunity to consider

the General Practitioner's notes and records. Mr Cassidy did so.

However the appellant and her representative indicated that they

did not wish to see the notes.

The Chairman then explained the history of this matter. This

lady had high rate mobility from and including 14 December 1995

and had sought an out of time review for the care component.

All parties agreed that the issue before the Tribunal was whether

or not there were grounds to review the Adjudication Officer's

decision on the 27 July 1998. The Chairman went on to point out

that if anything arose in the course of the Tribunal that would

indicate that the mobility component should not be payable then

it could be become an issue. All parties were given an opportunity

to consider the implications of this and it was explained in some

detail by the Chairman and [claimant] and her representative.

Mr Hughes indicated that he had explained that to his client and

that they wished to proceed. Accordingly the matter proceeded.

Mr Hughes then made an opening statement in which he indicated that

Doctor Br... (sic) was the person who knew his client the best. His

client suffered from fibro-myalgia and osteoporosis and osteoarthritis.

Both he and his client completely disagreed with the views of the

Examining Medical Practitioner. The Chairman then asked him to

exactly set out who had diagnosed osteoporosis and osteoarthritis as

there was little or no evidence in the medical notes and records

other than that there was a note to say on the 7th October 1996

she had a normal bone scan and there was a small osteoarthritis

at the base of one thumb. The Chairman then reviewed the evidence

as set out in the General Practitioner's notes and records which

were fairly extensive and pointed out that X-rays of her spine

were normal. She also had an ultra scan which showed no

abnormalities. Her hearing had been checked and was average for

her age. She had been the subject of these tests in March '99 all

of which were normal and the comments of the Doctor were that it

was a classic case of fibromyalgia.

The Chairman then asked Mr Hughes whether or not he wished to lead

his client through his evidence or whether or not they wished the

Tribunal to do so and he indicated he would prefer the Tribunal to

ask the relevant questions.

[Claimant] then gave evidence to say she lived in a ground floor flat,

this is a one bedroom flat. She has 3 children, one daughter and 2

sons all who live locally. The children take turns to help her out

and they have a basic rota. Her daughter stays 4 nights and her sons

the remainder of the time. The Chairman invited her to go through

her daily routine on an average day. She indicated she got up at all

different times, sometimes as early as 6.00 am and sometimes 6.30 am.

She would take her painkillers and these are left out by her son

beside her bed. She then takes her gum shield out. She has problems

with her gums. She has very little interest or enthusiasm for

getting up. She can get up herself but requires some help. This

is due to pains. She says she has pains everywhere, in her face,

arms, feet, knees and joints. Her joints in fact lock. She was

asked exactly what the person does to get her up and she said

whoever was there just helps her up. She cannot manage certain

items of clothing for example, she has difficulty with buttons

and tends to use clothes that have elastic in them. She cannot

bend. She has no interest in washing and has to be encouraged

to wash and clean herself. She has no enthusiasm or wish to go

out. She was asked was this the situation all of the time and

she said that sometimes she could manage. She has to have help

both having a shower or bath. The Chairman enquired whether or

not there were any aids in the house or whether or not she had

been seen by an occupational therapist and apparently this has

never been suggested to her and she has had no assessment.

Mr Hughes interjected to say an occupational therapist would

take a year. The Chairman asked what she did throughout the day

and she said that she mainly watches television or reads. She

could make herself a cup of tea and goes to Mass on a Sunday.

She is always accompanied. On a Wednesday she goes to her

mothers and again she is taken by one her family and her mother

does not enjoy good health. She has been like this for the last

4 or 5 months. She says she is rarely left on her own and if she

was it would be for a maximum of 1 hour. The Chairman enquired

what her problems were at night and she says she has problems

undressing and getting out of bed and needs help. She has

problems in bed and needs help to get turned. Sometimes she can

manage on her own but only possibly once a month or something

like that. When in bed she is uncomfortable and finds it

difficult to sleep. Apparently she sleeps on 2 mattresses which

are on the floor. There is no bed even in the spare room but a

mattress on the floor and one of her sons sleeps there. There is

a bed settee in the living room. During the night her older son

would counsel her and talk to her. She went on to indicate that

she was old at one stage that it would be as wise to keep a diary

and she did keep a diary but it depressed her so much that she

burnt it. She can take her own medication most of the time but

has difficulties with the tops of bottles. She needs help going

to the toilet and would have accidents on occasions.

In relation to cooking she says that she can make a cup of tea

for herself but there would be no question for her being able to

chop or peel or organise a meal. She would not have the

necessary concentration. She would need encouraged to do this.

She could not possibly organise it. She felt that cooking was

out of the question.

Mrs L… Tribunal Member enquired whether or not she could

turn on taps and she said that she could. She also enquired

whether or not she was able to brush her teeth and she said that

she could. The panel Doctor enquired exactly what difficulties

she has with her grip and why could she not hold the potatoes

and peel same. She says that her hands lock and are very painful.

Mr Cassidy for the Agency had no questions and relied on the

submission in the papers. In relation to the mobility issue he

said he had noted various matters which were cause for concern

but he would leave the matter to the Tribunal.

The Chairman invited [claimant] and her son and Mr Hughes to

comment on the Examining Medical Practitioners report and said

they simply disagreed with same and reiterated the point that

the up to date report from Dr Br... (sic) dated 22 April 1999,

which had been handed in to the Tribunal, was much more reliable.

The chairman indicated that the last word really should go to

[claimant] or Mr Hughes again relied on his submission dated 22

April 1999 which was handed in.

No one had anything further to add."

6. The unanimous decision of the Tribunal was in the following terms:-

"Care component disallowed from and including 27 July 1998."

7. The mobility component was specifically not considered by the Tribunal so, as I understand it, the existing award of higher rate mobility component still continues.
8. The claimant who is represented by Ms Slevin of the Law Centre (NI) sought leave to appeal to a Commissioner on the following grounds:-

"It is respectfully submitted that the decision of the tribunal

was erroneous in law as the tribunal failed to make adequate

findings of fact or to give a proper statement of reasons for

its decision.

It submitted that the tribunal erred in failing to make a

finding of fact as to whether it rejected the evidence of

Dr B... and the claimant that she suffers from a nervous

debility. The EMP in his report fails to consider the issue

of nervous debility and its implications for [claimant's]

care requirements.

The tribunal state in their finding of fact material to the

decision that they preferred the evidence of the EMP over the

evidence of Dr B... and the specifically note in the reasons

for the decision that they accept the EMP's findings, "that

there are no physical findings that should prevent her attending

to all her own care needs both during the day and at night."

They also state in the findings of fact material to their decision

that, "the tribunal noted that despite Dr B...'s concern for

her mental condition he had not referred her to any psychiatric

help nor had he organised an occupational therapist."

It is submitted that the tribunal should have gone beyond this

to state expressly whether they rejected the evidence that

[claimant] suffered from a nervous debility.

It is submitted that the tribunal erred in failing to give

adequate weight to Dr B...'s very detailed report of 22 April

1999. Dr B... went to some length to stress at the beginning

of the report that he had known [claimant] for over 30 years,

and that she was well known to him. Dr B... also proceeded to

give special significance to [claimant's] nervous debility, which

he confirmed to be genuine, and he took great care to support

[claimant's] application for an award of the care component.

It also submitted that the tribunal erred in law in reaching the

conclusion that [claimant] was not entitled to the lowest rate

of the care component in relation to the cooking test. The

tribunal failed to deal adequately with [claimant's] evidence of

past accidents when cooking, and of her inability to plan or

prepare a main cooked meal due to her nervous debility."

9. Leave to appeal was granted by a Chairman on 22 September 1999.
10. Mrs Gunning, the Adjudication Officer (now the Departmental Official), made the following submission in writing by letter dated 22 November 1999:-

"Miss Slevin contends that the tribunal failed to make adequate

findings of fact or give proper reasons for its decision. In

particular she contends that the tribunal should have specifically

stated why it rejected the evidence that [claimant] suffered from

a nervous debility and failed to deal adequately with her evidence

of past accidents when cooking and her inability to plan or prepare

a main cooked meal due to her nervous debility.

The question before the tribunal was whether [claimant] satisfied

the conditions of entitlement to the care component of disability

living allowance. The record of proceedings shows that the

tribunal considered Dr B...'s letter, the report of the examining

medical practitioner, [claimant's] own evidence and her medical

notes and records. It is clear from the decision why the tribunal

rejected [claimant's] evidence and that of Dr B... and preferred

the opinion of the examining medical practitioner. I submit the

tribunal considered the relevant criteria and applied the correct

test and that there is no error of law in the tribunal's decision.

Accordingly I oppose the appeal."

11. Ms Slevin made the following additional submission, by letter dated 21 December 1999:-

"I would continue to submit that the tribunal's statement of

reasons for the decision is inadequate, as it is unclear why

the tribunal rejected [claimant] and her GP's detailed evidence

of anxiety/a nervous debility.

In the Findings of Fact material to the decision the tribunal

found that,

"She [claimant] also appears to suffer from depression"

and that

"The tribunal specifically reject the evidence of Dr

Br... (sic) and prefer the evidence of the Examining

Medical Practitioner whose opinion is clear and concise

and leaves little room for doubt. The Tribunal noted

that despite Dr Br...'s (sic) concern for her mental

condition he had not referred her for any psychiatric

help nor had he organised an occupational therapist"

It submitted that the EMP's report failed to adequately address

the question of anxiety and depression and that Dr Br...'s (sic)

report addressed this issue in detail. The EMP simply found on

p21, Part 8, "OVERALL FACTORS", "This is only partially due to

physical factors". The tribunal failed to consider that Dr

Br... (sic) had prescribed medication to [claimant] to treat her

depression.

In the absence of an explanation from the tribunal as to why

they rejected Dr Br...'s (sic) evidence of her mental condition,

[claimant] is left in the position where she cannot comprehend

how this conclusion was arrived at.

Accordingly I continue to submit that the tribunal's decision is

erroneous and should be set aside."

12. Having considered the circumstances of the case I am satisfied that the Appeal can properly be determined without a hearing.
13. In my view it is clear that the Tribunal has rejected Dr B...'s evidence. It is also my view that the Tribunal was entitled so to do. The rejection of evidence in these circumstances is not a failure to make adequate findings of fact or a failure to give proper reasons for so deciding. It is not for a Commissioner to superimpose his or her views, if they differ from a Tribunal's, but a Commissioner's jurisdiction to set aside such a conclusion is dependent on a finding that there is an error in law and, in the circumstances, I find no error of law in the Tribunal's rejection of Dr B...'s evidence. The Tribunal was entitled to prefer the evidence of the Examining Medical Practitioner.
14. Ms Slevin has made important submissions concerning the claimant's allegation that she suffers from a nervous debility. It must be remembered that it is not necessarily a consequence of nervous debility that a person needs attention, supervision or help in preparing a cooked main meal. Therefore, in my view, a Tribunal is not required to decide whether it accepts she suffers from such debility or not. I conclude that the Tribunal has not erred in law by failing to deal with this issue.
15. Ms Slevin also has submitted that the Tribunal has erred in law by failing to give adequate weight to Dr B...'s very detailed report of 22 April 1999 which, inter alia, mentions anxiety and depression. As stated earlier in this decision, the Tribunal was entitled to reject the substantive conclusions set out in Dr B...'s evidence, in light of the other evidence in the case. Close examination of the report makes it clear that much of it is based on the claimant's own history. The Tribunal is entitled to take the view that her evidence to the Tribunal was much exaggerated and also to give little weight to the history of the claimant's condition set out in Dr B...'s report based on what she said to him. It is also noteworthy that the Tribunal, in effect, has stated that Dr B...'s pattern of treatment does not correspond with his concern for the claimant set out in the report. In my view, the Tribunal has not erred in law in dealing with this issue.
16. Ms Slevin submitted that the Tribunal erred in reaching the conclusion that the claimant was not entitled to the lowest rate of the care component arising out of the cooking test. However, in my view, the Tribunal has dealt with this issue by concluding that the claimant's evidence is unreliable. There is no evidence, other than from herself, that she cannot cook a meal for herself. The Tribunal, therefore, was entitled to come to the conclusion that she could make a main meal for herself if she had the ingredients.
17. Accordingly, in my view, Mrs Gunning is correct in her submissions that the issue was whether or not the claimant satisfied the conditions of entitlement to the care component of Disability Living Allowance. The Tribunal considered Dr B...'s letter, the report of the Examining Medical Practitioner, the claimant's own evidence and her medical notes and records. The Tribunal rejected the claimant's evidence and also that of Dr B.... It also accepted the opinion of the Examining Medical Practitioner. It seems to me that the Tribunal applied the correct tests and considered all the relevant criteria. A Commissioner is not entitled to interfere with a decision, such as the one made by the present Tribunal, unless there is an error of law. I find no such error and, therefore, I disallow the appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

3 April 2000