Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C51/99-00(DLA) (6 September 2000)

 


Decision No: C51/99-00(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 21 September 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 21^st September 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Londonderry. That Tribunal had decided that an earlier Adjudication Officer's decision dated 21^st August 1998 was erroneous in law. A subsequent Adjudication Officer's decision dated 23^rd March 1999 was also held to be erroneous in law in not correcting the previous decision. The Tribunal therefore concluded that grounds to review both these earlier decisions had been established on the basis that they were both in error of law. The Tribunal decided that the claimant was not entitled to either component of the Disability Living Allowance from and including 13^th May 1998.
2. The claimant sought leave to appeal by means of an OSSC1 form dated 7^th January 2000 and received in this office on 15^th February 2000. I granted leave. Observations on the appeal were made by the Decision Making and Appeals Unit by letter of 19^th April 2000 from Mrs Gunning of that unit. These observations were sent to the claimant for comment. I then directed both parties to address me on certain further matters and Mrs Gunning forwarded additional comments by letter dated 21^st June 2000. Mr Murphy of the Citizens Advice Bureau, Londonderry, representing the claimant forwarded further comments by letter of 23^rd June 2000. I am obliged to both representatives for their assistance.
3. Amongst the matters upon which I had sought further comment was the question of whether the Adjudication Officer on 21^st August 1998 had erred in law in awarding the mobility component at the higher rate and the care component at the middle rate. I asked if it was considered that there was such an error to be informed of what the error was.
4. Mrs Gunning responded to my request for comment as follows:-

"I consider that the Adjudication Officer (AO) on 21^st August 1998 did err in law in awarding mobility component at the higher rate and care component at the middle rate. The evidence before the AO was section 2 of form DLA1 which [the claimant] completed on 17^th May 1998 and Dr T...'s' report of 7^th August 1998. [The claimant's] statements regarding his mobility and his personal care needs were not supported by Dr T...'s' report and consequently no person properly instructed as to the relevant law could have made the award."

5. Mr Murphy commented as follows:-

"I would submit that the AO decision of 21.8.98 was correct based on the information given by the factual report at the time which clearly indicated that the appellant had osteoarthritis of hips and knees which caused reduced mobility and persistent stiffness resulting in reduced ability to bend, difficulties in changing from sitting to standing position and difficulty in using stairs. Subsequent reports on the appellants health would prove that the original decision was more than justified."

6. The "factual report" to which Mr Murphy refers is, I take it, the report dated 7^th August 1998. Included in that report were inquiries to the General Practitioner as to the claimant's problems with walking. In reply to those enquiries the General Practitioner replied that the claimant had no difficulty so far as he was aware in walking on level ground and that he could walk approximately 200 to 400 yards at a slow pace before the onset of severe discomfort and that there was no impairment of gait and no requirement for attention and or supervision to enable the claimant to get around in unfamiliar surroundings most of the time. The General Practitioner also mentioned that the claimant had a reduced ability to bend and to change from sitting to standing. He had no difficulty in moving around indoors or with upper limb or fine movement or grip function and had difficulty in using stairs. He also mentioned that there was no history of falls.
7. This was in considerable conflict with the claimant's own statement of his condition contained in the DLA1 form, section 2 dated 17^th May 1998. In that form the claimant stated that he could walk 10 yards before the onset of severe discomfort, that he needed someone to support his weight, that he walked with a limp, that he needed someone with him at all times out of doors, that he would sometimes fall or stumble as he suffered from dizzy spells and took cramps in his legs and his legs would just give way. He also stated that he could not get out of a chair without help, could not manage the stairs, needed someone to take him to and from the toilet, could not bend.
8. Despite the obvious inconsistency, an Adjudication Officer on 21^st August 1998 awarded the claimant the higher rate mobility component and the middle rate of care component for a period from 13^th May 1998 to 12^th May 2000. I find the award a matter of some concern especially as I have no information that any further enquiries were made or any medical examination commissioned on the Department's behalf. That, however, is not a matter for me but for the Department. What I have to consider is whether or not the Tribunal was correct in considering that that award was made in error of law. It seems to me that had the Adjudication Officer who made the award accepted Dr T...'s' report it is unlikely that an award would have been made particularly of the high rate of the mobility component. However, had the Adjudication Officer accepted the claimant's evidence that award could have been made.
9. I must therefore ask myself whether or not the Adjudication Officer actually erred in law in accepting, as it appears was done, the claimant's evidence. I assume that this was done as there is no indication that any other evidence was obtained and no detailed reasoning given for the Adjudication Officer's decision.
10. I do not consider that the Adjudication Officer actually erred in law in accepting the claimant's evidence although there was of course no obligation to accept it. The Adjudication Officer would equally not have erred in law had the claimant's evidence been rejected.
11. I would add in relation to Mr Murphy's comments that the fact that someone has difficulty in doing something does not necessarily mean that that person needs assistance or attention to do it. Many persons manage quite independently although having some degree of difficulty. The standard is whether attention is reasonably required.
12. It is not an error of law to accept or reject some particular piece of evidence. This is so even though there may be other evidence to a different effect. The Adjudication Officer was not per se in error of law in accepting the evidence of a claimant in preference to the evidence of a doctor though it is perhaps rather unusual that this should be done in the circumstances. If it could be shown that the Adjudication Officer had ignored the doctor's evidence that could be an error of law but there was no indication that that took place in this case.
13. Having concluded that the Adjudication Officer on 21^st August 1998 did not err in law, I must conclude that the Tribunal erred in considering the decision of 21^st August 1998 to be made in error of law. I set the decision aside for that reason.
14. The Tribunal was also in error in its conclusion that the Adjudication Officer's decision of 23^rd March 1999 (which reviewed the decision of 21^st August 1998 on the grounds of relevant change of circumstances) was in error of law because it had not considered the earlier decision of 21^st August 1998 to be in error of law. The Tribunal so considered and decided that the claimant was not entitled to either component of Disability Living Allowance from 13^th May 1998 (the date of claim).
15. The decision of 23^rd March 1999 may or may not have been correct in reviewing the decision of 21^st August 1998 on the basis of change of circumstances and in deciding that from 13^th March 1999 entitlement should cease. However the Tribunal determined that it was in error of law and it was incorrect to do so.
16. I set the Tribunal's decision aside for the above reason alone but would wish to comment on certain additional matters. One of these is the use of the Incapacity Benefit medical report. The claimant in this case had undergone an examination in connection with a claim for Incapacity Benefit. He was medically examined in relation to that on 29^th October 1998 and at the medical examination the doctor concluded among other things that the claimant had no walking limitations. I am not aware as to whether the Adjudication Officer who was responsible for making the decision on Incapacity Benefit accepted in full the doctor's report relating to the All Work Test. It appears that the claimant was contending for points from at least seven activities within that test. I understand from the correspondence that the claim was turned down by an Adjudication Officer and then on appeal was awarded 15 points by an Appeal Tribunal. I do not know what those points were for or whether any related to the claimant's walking ability.
17. The Incapacity Benefit medical report was forwarded by Incapacity Benefit Branch in the Department to its Disability Living Allowance Branch. Following on from this report the Adjudication Officer in the Disability Living Allowance Branch requested a medical examination to be carried out. I accept that the Incapacity Benefit medical was probably the trigger which caused the Disability Living Allowance Adjudication Officer to commission a further examining medical practitioner's report and either report certainly provided reasonable grounds for that Adjudication Officer to begin consideration of the existing award. I think it was the examining medical practitioner's report and not the medical report for purposes of the All Work Test which was the evidential basis of the decision to review and revise.
18. I can see no objection to the Incapacity Benefit medical report being forwarded to the Disability Living Allowance Branch. Indeed as the Department has charge of the payment out of public money it is advisable that it has the fullest information available. It also appears that the claimant was informed of the fact that Disability Living Allowance Branch knew of his having failed the All Work Test and he was given an opportunity to comment on the matter and informed the Department that he had been awarded Incapacity Benefit on appeal. The claimant's letter informing the Department of the successful appeal on 17^th February 1999 in relation to Incapacity Benefit is dated 6^th February but I think that this must be a mistake in date for 6^th March. In any event the letter was before the Disability Appeal Tribunal and is marked as having been received in the Department on 9^th March 1999 so it is also likely to have been known to the Adjudication Officer who made the decision on 22^nd March 1999.
19. It therefore does not appear that the Adjudication Officer or the Tribunal were in ignorance of the Incapacity Benefit appeal having been successful. Even if they had been, I do not consider that their respective decisions would have been in error of law for that reason.
20. As I stated, I do not consider that the Incapacity Benefit medical assessment was the evidential basis of the review though it may have triggered it. The basis of the review appears to have been the examining medical practitioner's report of 13^th March 1999. The request to the examining medical practitioner did not mention that the claimant had succeeded on his appeal in relation to Incapacity Benefit but it did enclose a copy of the Incapacity Benefit medical assessment which was contained on an IB85 form a copy of which was sent to the examining medical practitioner. I do not consider that there is any natural justice point arising therefrom.
21. My reasons for that are firstly that the examining medical practitioner was not conducting a hearing or making a decision but conducting a medical examination so the rules of natural justice did not apply to him as they would to a hearing. Secondly he obviously did not, as a professional person, simply follow the Incapacity Benefit medical assessment. It is quite obvious that he conducted his own assessment and indeed he has differed from the Incapacity Benefit doctor in some respects. Thirdly I note that he was requested (and it would appear that he has done so) to take a statement from the claimant on the questions raised by the Adjudication Officer which he was specifically requested to cover in his report. He has taken a full statement from the claimant as to his various limitations but does not appear to have accepted this in full. This of course the examining doctor is entitled to do. He is not required to accept a claimant's view of his limitations. In addition the Adjudication Officer was making the decision not the examining doctor, and he was aware, as was the Tribunal, of the successful appeal. I can therefore find no natural justice point arising in this matter.
22. As mentioned above I am setting aside the decision of the Tribunal for the reason given. As there are obvious evidential issues to be considered in this case I am remitting the matter for rehearing before a differently constituted Appeal Tribunal. I direct that Tribunal to consider whether the Adjudication Officer on 23^rd March 1999 had grounds to review the decision on 21^st August 1998 whether on the basis of a relevant change of circumstances, ignorance of a material fact or error of law (should additional information come to light). I would mention in passing that if the Tribunal is considering ignorance of a material fact there must be some actual fact of which the Adjudication Officer was ignorant.
23. If, as may or may not happen in this case, a Tribunal is rejecting any of a claimant's crucial evidence, including any medical reports and it says so and explains briefly why, it is unlikely to be in error in that respect. I have not commented in detail on this claimant's grounds of appeal in relation to this as it is not necessary in light of the above but it is certainly less likely that a Tribunal will fall into error if it clearly sets out its assessment of medical evidence. Whether it accepts or rejects any particular piece of evidence whether medical or otherwise is a matter for the Tribunal as the fact finding body. If rejecting crucial medical evidence brief reasons will usually suffice. This may, for example, be because the medical includes no examination findings or seems based on a claimant's unreliable history or is inconsistent with the earlier evidence or is not supported by medical records or treatment pattern. The above are simply examples of the type of reasons which may be given. It is for the Tribunal in each case to make its own assessment of evidence and give its own reasons for its decision. The only requirement is that the reasons adequately explain the decision.
24. The new Tribunal is not to take into consideration circumstances which did not pertain at the date of the Adjudication Officer's decision on 7^th July 1999.

(Signed): M F Brown

COMMISSIONER

6 September 2000