Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C41/99-00(DLA) (3 July 2000)

 


Decision No: C41/99-00(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 12 May 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 12th May 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newtownards. I held a hearing of the appeal which was attended by Mr Robinson of the Citizens Advice Bureau representing the claimant and by Mr Fletcher of the Decision Making and Appeals Unit (hereinafter called DMAU) representing the Adjudication Officer. I am obliged to both gentlemen for their considerable assistance in this matter.
2. My decision is given in the last paragraph.
3. The background to the case was that the Tribunal was dealing with an appeal against a decision dated 3rd February 1999. That decision was an "in time" review of an earlier decision dated 2nd December 1998 ie. the application for review was made within 3 months of notification of that decision. The decision was reviewed but not revised.
4. The decision of 2nd December 1998 was dealing with an "out of time" application for review of a decision dated 10th April 1998 which had decided the claimant was not entitled to either component of Disability Living Allowance. The application for review was described as out of time because it was not made within the prescribed period of three months. The significance of this is that the applicant for review, in this case the claimant, had to show grounds within section 28(2) of the Social Security Administration (Northern Ireland) Act 1992 before a review could be carried out. That subsection contained various grounds for review. Certain of those grounds were contended for by the claimant. Firstly it was contended that the decision of 10th April 1998 was given in ignorance of a material fact or based on a mistake as to a material fact and secondly it was contended that that decision was wrong in law. The Adjudication Officer on 2nd December 1998 decided that none of those grounds were established and further decided that no other ground under section 28(2) was established and that he could not therefore review the earlier decision. No issue was raised before me nor was it raised to the Tribunal that any of the other grounds were applicable apart from those contended for. No others were apparent from the papers.
5. As mentioned previously the Tribunal was dealing with the decision of 3rd February 1999 but in essence this entailed it considering whether the decision of 2nd December 1998 was correct. The Tribunal concluded that it was and therefore affirmed the decision of 3rd February 1999. The claimant appealed to me.
6. The grounds of appeal which were set out in correspondence and at the hearing before me were in essence as follows:-

1. The Tribunal and the Adjudication Officer on 2nd December 1998 both erred in taking into account the claimant's employment as a chef in considering his entitlement to the mobility component. The claimant conceded that regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 permitted an adjudicator, when determining a persons physical condition to take into consideration the demands of that person's employment. He stated, however that that was not the approach which the Tribunal had taken. It had stated that the Adjudication Officer was correct in saying that the nature of the employment cast doubt on the entitlement to the benefit. This revealed an error of law.

2. The Tribunal did not state why it had accepted Mr McCrellis's (the presenting officer) argument as opposed to that of the claimant's representative in relation to 1 above. This was contrary to the adequate reasoning standard laid down in decision R(M)1/83.

3. The Tribunal did not consider evidence which was not before it but was relevant and available. It did not take evidence from the claimant himself in relation to the representative's contention about the claimant being virtually unable to walk and this was a breach of the Tribunal's inquisitorial role.

4. There was also a failure of this role in that the Tribunal and indeed the Adjudication Officer had not clarified ambiguities within the medical evidence and this was contrary to R(SB)2/83 paragraphs 10 and 11 of which were particularly relevant. The Tribunal had to "pick up on points" identified as being relevant not on undisputed facts.

7. I also had the benefit of Mr Fletcher's written observations dated 21st December 1999 and Mr Robinson's further comments thereon dated 7th February 2000 and enclosures which accompanied those comments.
8. Mr Fletcher opposed the appeal. He said that the duty of the Tribunal was to consider whether or not the Adjudication Officer on 2 December 1998 had grounds to review the original decision.
9. Mr Fletcher submitted that the Adjudication Officer had not contended that the claimant's employment was a bar to entitlement. Had he thought this he would not have sought evidence from the examining doctor as to the claimant's walking ability. The Adjudication Officer had placed reliance on the examining doctor's report and he appeared to have taken into account all the evidence.
10. Mr Fletcher further submitted that had the Adjudication Officer failed to exercise his inquisitorial role he would have erred. However, he did not do so, he considered all the evidence including the claimant's own statement that he could walk 40 yards before the onset of severe discomfort. The Adjudication Officer had to decide the matter on the balance of probabilities.
11. As regards the Tribunal's decision, in Mr Fletcher's submission, it was asked whether there were grounds for review based on either ignorance of fact or a mistake of fact or error in law. The Tribunal considered all the evidence presented including letters related to the situation at the time in question but which did not become available until after it. Those letters were no different in substance to those already before the Adjudication Officer.
12. Mr Fletcher contended the Tribunal did not err in concluding that no grounds for review were established.
13. I do not consider that the Tribunal erred as was contended by Mr Robinson in relation to grounds 1 and 2 above.
14. In this case full time employment does not appear to have been the basis of any of the Adjudication Officer's decisions. As the Tribunal stated the officer on 10 April 1998 obtained medical evidence and took into consideration all the relevant factors regarding distance, time, speed and manner of walking. Obviously different employments have different demands and some will raise no doubts as regards physical limitations. Others, of course may do so.
15. The Tribunal has clearly stated that it did not consider employment as a bar to entitlement but it has decided (in my view correctly) that an Adjudication Officer can take into consideration the fact that someone is in full time employment in deciding whether he is satisfied that a claimant's physical condition does limit him to the extent of being virtually unable to walk. I think it quite clear, when its reasons are read, that the Tribunal was separating the assessment of the claimant's physical condition (in relation to which he could consider the claimant's employment and its demands) and whether or not, once those conditions were met the claimant was otherwise entitled to the mobility component (in relation to which employment was not to be regarded).
16. I do not consider that the Tribunal's reasoning was inadequate. It is quite apparent that it accepted Mr McCrellis's argument that the claimant's full-time employment as a chef was "no bar to Disability Living Allowance" but concluded "it does throw doubt on entitlement and the Adjudication Officer is entitled to consider this." True it has not set out any detailed explanation of why it should accept Mr McCrellis's argument. The Tribunal is required to give reasons for its decision, not reasons for its reasons. One of the reasons for the decision was that it accepted a particular argument and it is not always necessary that it goes into full details as to why it accepts that particular argument, particularly where, as here, that issue was not central to its decision and the argument was set out in the submission and at hearing.
17. It should be remembered that the Tribunal was here essentially deciding whether or not there were any grounds within section 28(2) to review the decision of 10th April 1998. It had been contended to the Tribunal that there was an error of law on the part of the Adjudication Officer, Mr Whitney, who made the submission to the Tribunal in that he asserted that the claimant's "stated and demonstrated restriction of walking ability "was not" in keeping with his occupation as a chef." It should be noted that Mr Whitney was submitting that the occupation of chef was not in keeping with the stated and demonstrated restriction of walking ability. That may or may not be factually correct but it is not indicative of an error in law. It refers specifically to walking ability not to entitlement. None of the Adjudication Officers who had made decisions on the case had even mentioned the claimant's occupation. The assertion by an Adjudication Officer who had not made either the decision on 10th April 1998, 2nd December 1998 or 3rd February 1999 was not therefore of great relevance in deciding whether there were any grounds to review the earlier decisions. There was no indication that any of those decisions had been influenced by the claimant's employment.
18. Mr Robinson in his further observations dated 7th February 2000 also stated that he had argued to the Tribunal that the Adjudication Officer of 10th April 1998 had similarly erred. I can trace no such argument on the record of the hearing. Even if I accept it was made, however, I can find no factual basis for it. The first time any issue was raised relating to the claimant's employment was in the submission to the Tribunal by the Adjudication Officer, Mr Whitney. He was not the officer who made the decision of 10th April 1998, nor did he make the decisions of 2nd December 1998 or 3rd February 1999. None of those Adjudication Officers made any mention of the claimant's employment.
19. The Tribunal was therefore, in commenting on the effect of Regulation 12(1)(a) dealing with an issue which was not central to its decision. The claimant was seeking to establish the alleged error of law on the part of one of the Adjudication Officers who had made decisions on his case, not on the part of the Adjudication Officer making the submission to the Tribunal. He did not establish that the relevant decisions were based on any such consideration. Indeed as Mr Fletcher said the fact that the Adjudication Officer on 10th April 1998 sought evidence for the examining doctor as to the claimant's walking ability would indicate that he did not consider the nature of the employment as a consideration in deciding on entitlement. He quite correctly explored the claimant's limitations in walking and care needs.
20. The Tribunal was not required to give any further reasons than that it accepted Mr McCrellis's argument on this matter. There was no error of law by the Tribunal in relation to inadequate reasoning on this point. It was dealing with an issue which was not central to the issues before it. It is quite apparent that the Tribunal against the background of Mr Whitney's submission and Mr McCrellis's argument was separating the two issues (a) whether the fact that someone was in full time work could be taken into account in determining that person's mobility limitations and (b) whether once those limitations were determined the nature and place of employment could be taken into account in deciding whether or not the person was entitled to the component. This separation is indicated by the statement "employment is no bar to entitlement". I find that the reasoning, while perhaps somewhat short, is nonetheless adequate in relation to this issue and is indicative of the correct legal approach being adopted. That approach is that Regulation 12(1)(a) does not prevent a decision maker from taking into account in determining a claimant's physical condition, the place of and nature of a claimant's employment. The sub-paragraph does, however, prevent a decision maker, where a person is found to satisfy the other conditions, from having regard to the nature or place of his employment, in deciding whether or not he is entitled to the component.
21. To give a couple of examples - a decision maker could take into account the fact that a person is employed as a professional footballer in deciding whether or not the physical conditions for the mobility component were satisfied. He could not, in, say, the case of a concert pianist find those conditions to be satisfied but say that because the nature of the employment does not necessitate walking, the allowance is not to be awarded.
22. I think it reasonably clear that this was the approach the Tribunal took. Even if it were not so clear, the issue is not, for the reasons set out above central to this issue of whether earlier Adjudication Officer's erred in law in this respect. No factual basis was established to indicate there had been any such error by the relevant officers and the action taken in the case by the Adjudication Officer on 10 April 1998 would indicate that the correct approach was adopted.
23. With regard to ground 4, I also do not consider that the Adjudication Officer erred in law in relation to any failure of the inquisitorial role. Even if it was accepted that the Adjudication Officer had the full duties of a Tribunal with relation to that, his conclusion that the claimant was not virtually unable to walk was quite open to him on the evidence before him without the need to explore further. The claimant himself had stated in his claim form that he could walk for 40 yards before the onset of severe discomfort and had indicated that his other walking problems were that he stumbled and occasionally fell. The medical evidence all accepted that the claimant had difficulties in walking. It was not inconsistent. The conclusion on the extent of those difficulties was open without further exploration by the Adjudication Officer. He was not obliged to accept or reject the same evidence as the claimant nor to interpret that evidence as the claimant contended in the review application. I can ascertain no breach by the Adjudication Officer of the standards laid out in R(SB) 2/83.
24. Mention was made and I can understand and indeed raised concerns in relation to the examining doctors report and in particular the replies at part five thereof. It appears to me quite clear that the examining doctor was there asked to give his opinion on the claimant's walking ability but instead he has indicated that the claimant demonstrated an ability that day (the day of the report) of 150 yards walking ability before the onset of severe discomfort. What the doctor should have been considering, of course, was the claimant's walking ability on most days and the day on which he was examining was stated by the claimant and accepted by the doctor as being a good day. The claimant had also made mention of the variation in his walking ability.
25. However, in light of the claimant's own statements in his claim form and as the doctors observations were of an ability that was no less than that stated in the claim form and as the conclusion that the claimant was not virtually unable to walk was open on the evidence already before him, I do not consider that the Adjudication Officer failed in any inquisitorial role in not exploring the matter further. If he was satisfied, as he could have been, that the claimant's own statement did not establish virtual inability to walk there was nothing in the doctor's statement which would have meant that he needed to explore that matter further.
26. In this case therefore and on the totality of the evidence I am satisfied that the Adjudication Officer could reach the conclusion which he did without exploring the matter further. I do not consider that there was failure of any inquisitorial role. The Adjudication Officer was not required to ascertain the precise distance which the claimant could walk before the onset of severe discomfort, he was required to decide on entitlement which he could do on the evidence before him. I must emphasize in this connection that the onus was on the claimant to establish his entitlement. If same was not established on the balance of probabilities then the claim could be rejected as indeed it was.
27. As regards ground 3, a Tribunal cannot be faulted because it did not take on board evidence which was not before it unless it could be said that it should have sought further evidence to enable it to decide on the issues before it. In this case no additional evidence was offered to the Tribunal though the claimant did attend with his representative. There is no indication that the Tribunal prevented the claimant from giving evidence. The only possible issue therefore is whether the Tribunal itself should have sought such further evidence. To make a determination on this issue it is necessary to look at the issues before the Tribunal and the meaning of ignorance of or mistaken as to a material fact. A material fact is a primary fact, it is not a conclusion. It does not establish ignorance of a material fact to say that an Adjudication Officer should not on the evidence have concluded that a claimant was not virtually unable to walk. There has to be shown some actual fact of which the Adjudication Officer was ignorant or as to which he made a mistake.
28. In this case no such fact was contended. Rather the argument and submission to the Tribunal related to interpretation of evidence already before the Adjudication Officer.
29. The claimant had a very uphill struggle in trying to establish that an Adjudication Officer was ignorant of or mistaken as to a material fact, as Adjudication Officer's are not obliged to record their findings of fact.
30. The relevant facts in this case as regards the mobility component must have been the distance, speed, manner and length of time of the claimant's outdoor walking before severe discomfort. All the evidence on which the claimant's representative based his argument was before the Adjudication Officer on 10th April 1998. Essentially what the representative was arguing was that the Adjudication Officer should have interpreted or assessed that evidence differently or could not, on any view of the evidence, have reached the conclusion that he did. The latter may amount to an error of law if established the former is not. The representative made no contention as to what, if any, fact the Adjudication Officer on 10th April 1998 was ignorant of or mistaken as to. This would have been difficult as the Adjudication Officer is not obliged to record his findings of fact and did not do so. The representative similarly could not establish that the Adjudication Officer had no evidence on which he could reach his conclusion. As indicated above that evidence did exist. For an Adjudication Officer to accept evidence which a claimant wishes to reject or to reject evidence a claimant wishes to have accepted is not per se a ground of review. It is not an error of law for an Adjudication Officer to assess evidence differently to a claimant.
31. As regards the care component the representative argued that there was ignorance of a material fact. In the written supervision he stated that the claimant had not provided full details of his requirements for supervision. This matter was explored at hearing and the representative contended that the material fact was that the claimant fell and stumbled frequently and had in fact broken an ankle. In fact the Adjudication Officer was aware that the claimant had injured his ankle in a fall, did fall from time to time, had fallen 2 months prior to his claim and stumbled daily. These facts were known to the Adjudication Officer on 10th April 1998 as was evident from the papers.
32. No prime facie case for review was therefore established. Against that background and bearing in mind particularly that the claimant was present with his representative and could have given evidence to support his contentions if he so wished, I can see no failure of the Tribunal's inquisitorial role in not calling for additional evidence. It simply did not need that evidence to decide the section 28(2) issues before it.
33. I can find no error in the decision either as contended by the claimant or in any other way.
34. I consider that the Tribunal was entitled to its conclusion that there were no grounds to review the decision of 3rd February 1999. If the claimant considers his condition has deteriorated since that date he may wish to consider re-applying.
35. I dismiss the appeal.

Signed): M F Brown

COMMISSIONER

3 July 2000