Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C14/00-01(DLA) (12 February 2001)

 


Decision No: C14/00-01(DLA)

SOCIAL SECURITY ADMINSTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of Londonderry Appeal Tribunal dated 19 January 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against a decision of a Tribunal to the effect that the claimant was not entitled to either the care or the mobility component of Disability Living Allowance from and including 20 May 1998.
2. A hearing of this application was arranged. At the hearing I indicated that, in the circumstances, I was minded to grant leave to appeal and that I also considered that I already had the benefit of hearing all relevant submissions on the issues arising in the case. Both parties therefore consented to me treating the application as if it were an appeal. Therefore, in accordance with regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine the application as if it were an appeal.
3. The claimant originally made a claim for Disability Living Allowance on 2 September 1994 on the grounds that he suffered from stomach ulcers, sinusitis, ulcerated (sic) colitis and heart disease. On 1 November 1994 an Adjudication Officer awarded the higher rate mobility component and the highest rate care component from and including 2 September 1994. After the completion of a report by the claimant's General Practitioner on 19 March 1998 and an examination by an Examining Medical Practitioner on 20 May 1998, a Departmental request for review was made on 4 June 1998. On 8 June 1998 a different Adjudication Officer reviewed the decision of 1 November 1994 and revised the decision so as to award the higher rate mobility component and the lowest rate care component from 20 May 1998. A request by the claimant for review was received on 3 August 1998. On 4 November 1998 a different Adjudication Officer reviewed the decision of 8 June 1998 but did not revise it. On 15 December 1998 the claimant appealed.
4. The appeal came before a Tribunal on 9 April 1999. At this hearing the claimant stated that his General Practitioner was not prepared to release his notes. Also the Presenting Officer stated that only the care component was in issue. The case was then adjourned as the Presenting Officer was advancing a different argument to that contained in the original written submissions to the Tribunal and the Tribunal directed that a new submission was to be set out in writing for the Tribunal at the adjourned hearing.
5. This written submission was produced and set out the following points: -

(i) The Adjudication Officer still maintained that the award of the mobility component at the higher rate was not in issue.

(ii) In relation to the care component for which the claimant was originally awarded the highest rate but had now been awarded the lowest rate, the original submission had stated that in relation to review that there had been a relevant change of circumstances since the original decision had been given (section 28(2)(b) of the Social Security Administration (Northern Ireland) Act 1992) so that the decision of 1 November 1994 was reviewable. The revised submission set out in an addendum stated that the relevant change of circumstances was an error in law (section 28(2)(d)) as on 1 November 1994 the claimant did not require prolonged or repeated attention in connection with his bodily functions (section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992). Consequently it was submitted that the decision of 8 June 1998 to revise the decision of 1 November 1994 (and therefore award lowest rate care) was correct although the grounds used, namely – "relevant change of circumstances", were incorrect.

6. However the appeal to the Tribunal was complicated by the decision of the Adjudication Officer dated 8 June 1998 which reduced the care award from the highest rate to the lowest rate.
7. Schedule 1 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 provides that on a review or a renewal claim a person of over 65 can continue to be entitled to the care component at the same rate as before or at an increased rate. However, in the event of an increased rate being appropriate, the qualifying period is six months. If the award is to be reduced a person who was previously entitled to the highest rate of the care component (for day and night needs) can still be entitled to the middle rate (for either day or night needs). However, when neither the day or night conditions are satisfied a person cannot become entitled to the lowest rate of the care component and so will cease to be entitled to Disability Living Allowance.
8. It is important to appreciate that this case is governed by regulation 3 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 prior to its amendment, with effect from 6 October 1997, by the Social Security (Disability Living Allowance and Attendance Allowance) (Amendment) Regulations (Northern Ireland) 1997. Up until 5 October 1997 a person who would have satisfied the conditions of entitlement at the age of 65 to qualify, will continue to satisfy those conditions provided that the claim is made before a claimant attains the age of 66 and also provided that the relevant conditions have been satisfied throughout the period between a claimant's 65^th birthday and the date of the claim. Since 6 October 1997 it is now necessary for a claimant to have made a claim before reaching the age of 65. In the present case the claimant reached 65 on 18 May 1994 and he made a claim on 2 September 1994 before he attained the age of 66.
9. The Adjudication Officer therefore in his addendum submitted that the effect of the legislation is that a claimant could not be entitled to the lowest rate care component if he had previously been entitled to the middle or highest rates. However he also submitted that if the Tribunal decided that the claimant was entitled to the lowest rate care component at the date of the original claim until the rate of the review decision dated 8 June 1998 (that is from 2 September 1994 until 19 May 1998) the decision of 8 June 1998 could still stand.
10. The Adjudication Officer therefore was submitting before the Tribunal that the Tribunal was required to decide whether the Department had grounds on 8 June 1998 to review the decision of 1 November 1994 and in the circumstances was the claimant entitled to benefit.
11. The case was listed again before a Tribunal on 11 June 1999 and on that date the Tribunal had the same constitution as the previous hearing. Again it was noted that the General Practitioner had refused to hand over his notes and records. The Presenting Officer on this occasion requested an adjournment for a report from an Independent Medical Adviser. It was arranged that the Independent Tribunal Service would organise the production of this report.
12. Dr Baird produced the relevant report dated 18 September 1999 and the contents of this report were obviously relevant both to care and mobility needs. Further written submissions, produced by a Decision Maker (as successor to the Adjudication Officer due to changes in the law) and dated 27 November 1999, made two additional relevant points.

1. It was submitted that the report from Dr Baird cast doubt on the existing higher rate mobility component and accordingly asked the Tribunal to consider this component, as the criteria for both the higher rate and lower rate of the mobility component were not satisfied.

2. In light of the medical evidence it was submitted that the claimant only satisfied the conditions of the lowest rate of the care component, but, in addition, the claimant cannot be entitled to the lowest rate in light of the fact that he is over 65 and he has previously been entitled to the highest rate.

13. Before the case came back before a Tribunal the legislative background to Disability Living Allowance appeals had changed with effect from 18 October 1999. From that date the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 had come into operation in respect of Disability Living Allowance. However, transitional provisions make it clear that (i) a decision on a claim or in connection with an application for review is to be treated as a decision of the Department (ii) an appeal to a Disability Appeal Tribunal is to be treated as an appeal newly made to an Appeal Tribunal in relation to a decision of the Department and (iii) an Appeal Tribunal is to rehear completely any appeal to a Disability Appeal Tribunal which had been adjourned before 18 October 1999.
14. The Appeal Tribunal, which heard the case on 19 January 2000, was differently constituted from the earlier Tribunals in so far as only one member of the Tribunal was a panel member at the previous hearings.
15. The following note was made by the legally qualified member, who was the chairman, in relation to the documents considered by the Tribunal when considering both components: -

"There are no General Practitioner notes available. The claimant handed in a written submission with a limb function schedule [Examining Medical Practitioner and Doctor Baird]."

16. The chairman made the following record of proceedings in relation to both components:-

"This is a complete rehearing.

Ms Rafferty: September 1994. Awarded higher mobility and highest rate care from and including 2 September 1994. Reduced to higher mobility and lowest care from 20 May 1998. Relevant change of circumstance – since 1 November 1994. Coronary by-pass 1995 with improvement Section 28(2).

Now over 65 – if relevant change and only satisfies lowest care – then no entitlement. Mobility was not in dispute originally but now is.

Mr Breslin: Department has changed mind again – error of law originally – now change of circumstances – unfair. Major heart surgery in 1995 did not improve the condition. General Practitioner so confirms in June 1999. [The 1994 claim form was summarised CDL058/93 – one hour is significant]. The 1994 was correct – highest care and higher mobility based on the evidence then. The letter of March 1998 to General Practitioner – under what Regulation?

Ms Rafferty: The Department has the right to seek further information. My understanding is that there was an anonymous phone call.

Mr Breslin: From what date did the condition change?

Ms Rafferty: General Practitioner report indicates the operation in March 1995 – this gave reasonable grounds to consider entitlement. Examining Medical Practitioner report May 1998 and the Adjudication Officer reduced the care component to lowest care and he was then 65. The award of lowest care was therefore erroneous.

Mr Breslin: Relevant change in 1995. Heart operation but the needs did not decrease. Section 71(a) and (b) highest rate care and higher mobility have applied throughout.

There is no evidence of cardiologist exercise test.

[Claimant]: The last test was 2 years ago maybe.

Doctor Doherty: Question. Since 1995 any tests?

Answer. Treadmill at a very slow rate. I had about 14 since 1995. My doctor is reluctant to release my notes – about that thick – he is happy to discuss.

My doctor will release the evidence – allow examination.

Mr Breslin: If the panel writes the General Practitioner will release the evidence.

Ms Rafferty: No entitlement to the care component.

Ms Rafferty: Mobility component. 4-5 minutes medical assessor – could walk 100 yards without stopping. The medical evidence indicates 50 yards. No entitlement to mobility component – no evidence of guidance or supervision from 18 September 1999. Have date of independent medical assessor examination.

Mr Breslin: Virtually unable to walk. Can only walk 30 yards before discomfort. General Practitioner letter June 1999 and on 18 September 1999 (medical assessor report) this was his opinion not evidence. He can walk but with difficulty up to 50 yards with severe discomfort after 50 – pain in chest and arthritic pain in knees, hips, feet and toes.

Mr Breslin of [claimant]: Question. Undressing.

Answer. My hands are so bad I am in splints – my hands are deformed. I have bother unscrewing medication. A planning pack for medication. I am on 19 a day. I had an occupational therapist in October. She suggested aids for eating. [The medication was meticulously noted by [the claimant]]. I have an infection in my toe nails and the medication has to be applied for me – 20 minutes every night, my toe nails are discoloured. I can't wash – my son gives me a body bath. I can't dry myself or shave. I don't use an electric razor.

Mr Breslin: Help dressing, shaving, bathing, washing, cooking a main meal and help with medication particularly due to dizziness. He is up 2-3 times per night at toilet.

[Claimant]: My family stay in a sort of rota over night.

Mr Breslin: Need to go to the toilet due to dizziness – he has fallen in the house – see the reports. Someone needs to be awake. High rate care persists right through despite the operation in 1995.

[Claimant]: I cannot understand that report.

Doctor Doherty: Question. Is your car manual?

Answer. Yes but power-steering.

This man had a coronary bypass in March 1995 and has suggested to us that he was on the treadmill on numerous occasions at the Rehabilitation Clinic. If his results were grossly negative that is in keeping with virtual inability to walk why was further intervention not mentioned. Today he wears splints on both wrists and removed same during his hearing. The Independent Medical Adviser refers to subluxation. He has deformed wrists. Notwithstanding this he was not reluctant in his demonstrative hand movements today. He makes much difficulty in opening his medication, why he was not non-child proof bottles is hard to understand as his pharmacist will, if asked, provide same. He drives a manual car.

His main disabling conditions are ischaemic heart disease and psoratic arthropathy. He has other problems – ulcerative colitis, chronic sinusitis, hypertension, hypothyroidism. Doctor Barr found that in his opinion he would have difficulty in peeling/chopping vegetables and coping with hot pans with slight impairment in both upper limbs ["slightly decreased wrist movement"] with otherwise full function of all limbs. The Examining Medical Practitioner in her opinion found he would have difficulty in peeling/chopping vegetables, hot pans with buttons, bathing and showering and "may" need help in rising from bed in the morning due to stiffness. The Examining Medical Practitioner found slight impairment of function in parts of all limbs as noted in Part 3 of the report of 20 May 1998 and that he could walk 50 metres before severe discomfort.

His General Practitioner states on 7 June 1999 that he has significantly ischaemic heart disease and significant joint disease with several other medical conditions, that he is "disimproved over the ensuing years" requiring help with all activities of daily living day and night with severely limited mobility and requiring help with personal hygiene day and night.

This Tribunal noted that the General Practitioner on 26 October 1994 stated that his exercise is severely limited by chest pain and could not walk on the level indoors but could prepare a main meal, dress/undress, get in and out of bed toilet himself and self medicate. His claim form indicated only help to dress/undress. He was awarded highest care and higher mobility from and including 2 September 1994 revised on 8 June 1998 to lowest care and higher mobility from 20 May 1998.

He was 65 on 18 May 1994.

This is a Section 28(2)b review requiring grounds to be established prior to review. The review was carried out on 8 June 1998. Where there grounds? The answer is yes – the claimant had major surgery and the Examining Medical Practitioner report of 20 May 1998 indicates limited care needs and stated an opinion that the claimant could walk 50 metres prior to severe discomfort. This Tribunal cannot look at circumstances after 4 November 1998. The claimant is fully aware that his entire Disability Living Allowance entitlement – both care and mobility – are being considered."

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

"Even allowing for the General Practitioner letter of 7 June 1999 that the claimant in his opinion needs help with all activities of daily living day and night and has severely limited mobility the other clinical evidence indicates a degree of help with care that amounts to help with a main meal, doing buttons, buttoning/showering and rising from bed in the morning. This is lowest case and most of the Tribunal prefers this evidence. The General Practitioner's view of severely limited mobility must also be weighed against the other clinical evidence which is again strongly to the contrary and is preferred. There is no evidence of need for supervision and guidance out of doors."

(In one copy of the reasons in the file made available to me there has been a hand written amendment which would suggest that in the second sentence the word "and" should read "at" and the word "of" should read "and". This is perhaps a more accurate reading of the Tribunal's intention but it does not seem appropriate to me to try to resolve this issue at this case, especially in light of my other findings which would make any ruling on this matter superfluous.)

18. The unanimous decision of the Tribunal in relation to the care component was as follows: -

"Care Disallowed from and including 20.5.1998 [lowest rate applicable on the evidence but this claimant has no entitlement as he was 65 on 18.5.1994]"

19. The unanimous decision of the Tribunal in relation to the mobility component was as follows: -

"Mobility Component disallowed from and including 20.5.1998."

20. The claimant sought leave to appeal. Leave was refused by the legally qualified member of the Tribunal on 15 June 2000. An application for leave to appeal was then made to a Commissioner. I arranged a hearing of this application which took place in Londonderry on 20 October 2000. Mr Breslin of the Law Centre (NI) (who also appeared at the Appeal hearing) represented the claimant and the Decision Making and Appeals Unit of the Department for Social Development was represented by Mrs Gunning. (In addition at my request, Mrs Gunning made further written submissions, by letter dated 13 November 2000, on one specific point. Although given the opportunity, Mr Breslin did not reply to these additional submissions.)
21. The points put forward by Mr Breslin can be summarised as follows: -

a. The Tribunal erred in law by not considering or dealing with the relevant evidence before it from the claimant and his General Practitioner, or, in the alternative, failed to give any or adequate reasons for rejecting this evidence.

b. The Tribunal failed to identify proper grounds for review and did not deal with the issue of the anonymous telephone call which appears to have triggered the review.

22. Mrs Gunning on behalf of the decision maker opposed the claimant's application. In relation to point one Mrs Gunning accepted that the Tribunal decision is not as comprehensive as it could have been. However, she submitted that it was evident how and why the Tribunal arrived at its decision – namely, that the Tribunal had considered all the medical evidence and preferred the evidence of the Examining Medical Practitioner (of 20 May 1998) and Independent Medical Assessor (of 18 September 1999) to that of the General Practitioner, and that the Tribunal in the circumstances was entitled so to do.
23. The major concern that I have is whether the Tribunal dealt adequately with a three page written document prepared by the claimant and produced at the hearing. This document appears not to have been specifically referred to by Mr Breslin at the hearing, nor has it been referred to by the Tribunal other than in the list of documents considered. Its status in any event is somewhat ambiguous. It contains a mixture of (1) evidence, (2) a commentary on the medical evidence and also (3) submissions of a legal nature. It is perhaps unfortunate that Mr Breslin did not refer specifically to this document – which by its very nature was difficult for the Tribunal to deal with. It required careful analysis, separating evidence from mere assertions and also from submissions. It is very difficult for a Tribunal to deal with such issues, brought directly to its attention by the claimant, when the claimant (as in this case) was represented by a competent and experienced representative. It is difficult for any judicial body to deal with issues, both legal and procedural, some of which are raised by the advocate involved in the case and some by his client. Unfortunately the record of proceedings and the decision suggest, perhaps quite wrongly, that the document was not dealt with at all. However it is not unreasonable to conclude, in light of the contents of the record of proceedings and the reasons for the decision, that the Tribunal probably dealt with the submissions put forward by Mr Breslin as the claimant's advocate, and did not deal with the submissions and evidence contained in the document put forward by the claimant.
24. It might be preferable in similar situations in the future if Tribunals brought the problem to the attention of both the advocate and the claimant at the hearing and then asked specifically which person was making submissions (as opposed to giving evidence) on the claimant's behalf. It is not satisfactory for a Tribunal to have to deal with the submissions of two persons both acting as advocates, especially in circumstances where the submissions are mutually inconsistent. Representatives appearing before Tribunals would also be well advised in similar circumstances to adopt specifically those parts of any submissions contained in a document produced by a claimant or by any other person, to ensure that the Tribunal gives such submissions the attention they deserve.
25. However the net result in the present case is that the claimant might reasonably be under the impression that the relevant document (containing evidence, assertions as well as legal submissions) had not been taken into account when the Tribunal came to its decision. While I have every sympathy in the particular circumstances with the Tribunal, I consider that it has erred in law by not specifically dealing with this document.
26. In relation to the other points raised on behalf of the claimant, it was argued that the Tribunal did not identify proper grounds for review. However, while the Tribunal did not set out the grounds in detail, it did specifically rely on Section 28(2)(b) of the Social Security Administration (Northern Ireland) Act 1992 (which concerns any relevant change of circumstances since the decision was given), and the Tribunal noted that the claimant had had major surgery in 1995.
27. Mrs Gunning submitted that the Tribunal, in the circumstances, had considered that there had been a relevant change in the claimant's condition since the original decision of 1 November 1994 to award benefit and that such a change constituted grounds for review. I conclude that Mrs Gunning's submissions on this point are correct and that the Tribunal has identified proper grounds for review.
28. In relation to the submission made by Mr Breslin that the Tribunal failed to deal properly with the issue of the anonymous telephone call, it is important to consider whether it was a real issue in this case. It seems clear from the record of proceedings that the review was triggered by an anonymous phone call. However, as Mrs Gunning has pointed out, the Department is entitled to make appropriate enquiries if it receives information which casts doubt on a person's entitlement to benefit – see Section 28(7A) of the Social Security Administration (Northern Ireland) Act 1992.
29. Implicit in Mr Breslin's submission is the argument that the review was only conducted after the receipt of information or evidence that was tainted with some sort of illegality. However, it is important to remember, even if this information or evidence had been obtained illegally – and I am specifically not making such a finding – there is no principle of law, either common law or convention law, that states that unlawfully obtained evidence is not admissible - Attorney General's Reference No. 3 of 1999 [2000 UKHL(14 December 2000)].
30. In my view the Department would have been remiss if it had not made appropriate enquiries in the then existing circumstances. However, whilst a telephone call may have instigated a process which ended up in there being a review, it was not the cause of the review. The telephone call may have prompted the Department to obtain information about the claimant's current condition but, as Mrs Gunning has pointed out and in my view pointed out correctly, it was the fact that the claimant had had surgery and the report of the Examining Medical Practitioner which formed the basis for the review. Accordingly I conclude that the Tribunal was not required to deal particularly with the issue of the anonymous telephone call as it was not a relevant issue in the decision making process in the present case.
31. However, in light of my finding as set out in paragraph 25 I conclude that the Tribunal's decision was erroneous in point of law. In the circumstances I set the Tribunal's decision aside and refer the case to a differently constituted Tribunal for a rehearing on the merits.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

12 FEBRUARY 2001