Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C4/00-01(DLA) (14 August 2000)

 


Decision No: C4/00-01(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 of law from a decision of Craigavon Disability Appeal Tribunal dated 5 August 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Tribunal to the effect that he is entitled to the middle rate of the care component of Disability Living Allowance from 21 August 1998 for life but is not entitled to either rate of the mobility component of Disability Living Allowance. Leave to appeal was granted by a Commissioner on 5 May 2000.
2. After an earlier series of claims and various awards of Disability Living Allowance the claimant submitted a claim for Disability Living Allowance on 4 June 1996. An Adjudication Officer on 19 December 1996 awarded the higher rate mobility and the middle rate care component from 21 August 1996 to 20 August 1998. On 22 April 1998 the claimant submitted a renewal claim for Disability Living Allowance stating in particular that he suffered from depression, panic attacks, chronic sciatica, an old leg injury (fracture), a missing right knee cap, a previous jaw injury (fracture) and psoriasis. He was examined by an Examining Medical Practitioner on 23 September 1998. On 5 October 1998 an Adjudication Officer awarded middle rate care component from 21 August 1998 to 20 August 2000. A request for review was received on 16 November 1998. On 26 November 1998 a different Adjudication Officer reviewed the decision of 5 October 1998 but did not revise it. Thereupon the claimant appealed on 8 December 1998. The appeal originally came before a Tribunal on 8 February 1999 but it was adjourned to enable the claimant's representative to present additional evidence regarding the claimant's psychiatric condition. At this hearing on 8 February 1999 the appellant and his representative were made aware that the care component might be in issue in any proceedings.
3. The appeal was eventually dealt with on 5 August 1999 before a Tribunal. The Chairman and one of the two members had not been part of the original Tribunal. However, it is entirely clear from the records of the Tribunal that the appeal on 5 August 1999 was by way of complete rehearing.
4. The Tribunal made the following composite findings of fact material to its decision in relation to both the care and mobility component:-

"1. Medical complaints include back and leg pain, pins and

needles in sole of foot, sciatica, depression, dizziness.

Claim form also referred to missing knee cap, psoriasis,

fractured jaw, panic attacks. History of alcohol abuse.

2. Fractured leg 1981.

3. In Armagh Hospital June 1988 - for depression and to be

detoxified. Discharged himself one day later.

4. In 1989 records reveal thoughts of suicide but no actual

suicide ideation.

5. X-ray 1995 - L5/S1 narrowing of disc space. Had

physiotherapy. Adopt Examining Medical Practitioner's

clinical findings.

6. Takes Cipramil (anti-depressant) and in May 1999 was

prescribed Zyprexa (anti-psychotic drug).

7. Appellant continues to drive and drives alone long

distances, for example, Lurgan to Portrush where he has

a caravan. Says here on his own a few days at a time.

Keeps in contact with his wife by mobile phone. Has

been there 3 times since July.

8. Disability Appeal Tribunal finds that appellant does

not have any significant problem with falling or

dizziness.

9. Seen Doctor H…, Consultant Psychiatrist, in May 1999

and to see her again in September 1999. She refers to

an outside chance that appellant has low grade psychosis

and some elements of depression.

10. Takes his own medication. Is mentally competent, aware

of dangers, not prone to fits, blackouts, comas or such

likes.

11. On appellant's renewal claim awarded middle rate care

component from 21 August 1998 to 20 August 2000.

12. Award of middle rate care component is in issue and

appellant understands this.

13. The appellant can prepare a cooked main meal for himself

if he has the ingredients.

14. Does not require frequent attention throughout the day

with bodily functions, or continual supervision

throughout the day to avoid substantial danger.

15. Does not require prolonged/repeated attention with bodily

functions during the night, or, someone to be awake during

the night for prolonged period/frequent intervals to avoid

substantial danger.

16. The appellant can walk at least 300-400 metres without

severe discomfort in reasonable time, speed and manner.

The exertion of walking would not constitute danger to

life or be likely to lead to serious deterioration in

health.

17. Is not severely mentally impaired. No evidence presented

or in the medical evidence to suggest arrested development

or incomplete development of the brain.

18. The appellant can take advantage of his walking faculty

on familiar/unfamiliar routes without guidance/supervision

when outdoors, most of the time, and it would not be

unreasonable for him to do so.

19. On slight balance it is accepted that appellant requires

some encouragement with bodily functions, perhaps to get

up, wash, shave, eat adequately and keep an eye on

medication, that is that he has not forgotten to take

same."

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

"There was some issue as to whether appellant was suffering

from mental disablement, for example, depression, or whether

he had more of a personality disorder. Whilst the Consultant

Psychiatrist, Doctor H… seemed to think it was more

personality she did refer to an outside chance of low grade

psychosis and some elements of depression. The General

Practitioner and medical records also make passing comment to

depression and indeed he has been prescribed Cipramil and

Zyprexa. On balance we will accept that he has an element of

depression as well as personality problems.

Having had regard to all the evidence we believe that there is

nothing in the General Practitioner records to cast doubt on

the Examining Medical Practitioner's clinical findings and

assessment and we believe that the Examining Medical

Practitioner's report is the more accurate assessment of

functional ability. It is only on the very slightest balance

that we believe low rate care component is appropriate for

some encouragement as regards bodily functions and per our

findings.

We are satisfied that the appellant is not so severely disabled, physically/mentally, as to require frequent attention with bodily

functions during the day, or prolonged/repeated attention with

bodily functions during the night; nor continual supervision

during the day, or someone to be awake during the night to watch

over him for prolonged period/frequent intervals, to avoid

substantial danger.

We not (sic) previous award of middle rate care component for a

limited period but on the weight of evidence before us it is our

view that same is not appropriate in respect of the period which

we are considering."

The reference to "not" in the last paragraph of the reasons for decision in relation to the care component should obviously properly read "note".

6. The Tribunal, in relation to the mobility component, gave the following reasons for its decision:-

"The appellant who drives a normal car and continues to drive

fairly long distances, claims that his walking is very limited

due to severe discomfort. The Adjudication Officer's review

decision is dated 26 November 1998. We note the General

Practitioner's comments as to walking ability but it is our

opinion, given the Examining Medical Practitioner's detailed

clinical findings at that time that the Examining Medical

Practitioner's findings assessment is the more accurate and

reliable assessment of walking ability. We find nothing in

the medical records to cast doubt on the Examining Medical

Practitioner's findings or opinion as regards walking ability.

In the circumstances we believe that the appellant can walk a

reasonable distance in reasonable time, speed and manner

without severe discomfort. There is no evidence that the

exertion of walking would constitute danger to life or be

likely to lead to serious deterioration in health or that of

the high rate criteria is satisfied.

Regarding the low rate mobility component reference was made to

panic attacks, dizziness and falls. The weight of medical

evidence did not indicate that any of these was a significant

problem. Whilst accepting that the appellant does have some

mental or physical problems we believe that the weight of

medical evidence does not support a findings that the appellant

is so severely disabled physically or mentally that he cannot

take advantage of his walking faculty on familiar/unfamiliar

routes without guidance/supervision when outdoors, most of the

time."

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

"The Appellant is entitled to low (sic) rate care component

(b.f(s), encouragement) from and including 21.08.98 - life.

Satisfies the 3 qualifying months immediately prior to 21.08.98.

Award of middle rate care component during stated period to be

treated as paid on account of award herein."

I understand that "b.f(s)" is an abbreviation for bodily functions.

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

"The Appellant is not entitled to mobility component from and

including 21.08.98."

9. The claimant sought the leave of the Chairman to appeal to a Commissioner but such leave was refused on 13 December 1999. However, as stated at paragraph 1 herein, a Commissioner granted leave to appeal on 5 May 2000.
10. Having considered the circumstances of the case and the fact that the claimant has sought a hearing of this appeal, although he has given no reasons for such a request, I am satisfied that the appeal can properly be determined without a hearing.
11. This case concerns the care and mobility components of Disability Living Allowance and, in the circumstances, it is perhaps helpful to set out the basic conditions of entitlement.
12. The basic conditions of entitlement to the care component can be summarised as follows:-

A person will be entitled to the care component if he satisfies one of the following conditions:-

That he is so severely disabled physically or mentally that:-

(i) he requires in connection with his bodily functions, attention from another person for a significant portion of the day; or

(ii) he cannot prepare a cooked main meal for himself if he has all the ingredients; or

(iii) he requires by day frequent attention throughout the day in connection with his bodily functions (this is one of the day conditions); or

(iv) he requires by day continual supervision throughout the day in order to avoid substantial danger to himself or others (the other day condition); or

(v) he requires at night from another person prolonged or repeated attention in connection with bodily functions (this is one of the night conditions); or

(vi) in order to avoid substantial danger to himself or others, he requires at night another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him (the other night condition).

The highest rate is payable to a person who satisfies "a day condition" (namely (iii) or (iv)) and "a night condition" (namely (v) or (vi)). The middle rate is payable to a person who satisfies either "a day condition" (namely (iii) or (vi)) or "a night condition" (namely (v) or (vi)). The lowest rate is payable to a person who satisfies (i) or (ii) - see section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

13. The basic conditions of entitlement to the mobility component can be summarised as follows:-

A person will be entitled to the mobility component if he is aged 5 or over and:-

(i) he is suffering from a physical disablement such that he is unable to walk; or

(ii) he has both legs amputated at or above the ankle or was born without legs or feet; or

(iii) he is severely mentally impaired and displays severe behavioural problems and satisfies both the day and night conditions of the care component; or

(iv) he is both blind and deaf and cannot, without the assistance of another person walk to any intended or required destination while out of doors; or

(v) his physical condition is such that his ability to walk out of doors is so limited, as regard the distance, speed or length of time, or manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(vi) the exertion required to walk constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(vii) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use familiar routes he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

Persons satisfying conditions (i) - (vi) will qualify for the highest rate mobility component, and those to whom (vii) is applicable will qualify for the lowest rate mobility component - see section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.

14. In this appeal I have had the benefit of the claimant's submissions set out in the notice of application for leave to appeal and in his letter to the office of Social Security Commissioners dated 30 May 2000. I have also had the benefit of the submissions of Mrs Gunning, of the Decision Making and Appeals Unit of the Department, set out in a letter dated 8 March 2000.
15. The claimant has contended that:-

(i) in relation to the claimant's ability to walk (concerning the higher rate mobility component) the Tribunal erred by failing to give adequate reasons for preferring the evidence set out in the Examining Medical Practitioner's report rather than evidence from the claimant's General Practitioner;

(ii) in relation to the Tribunal's finding that the weight of the medical evidence did not indicate that panic attacks, dizziness and falls were a significant problem (concerning the lower rate mobility component) the Tribunal erred by not giving sufficient weight to the evidence in the case that he suffered from depression and panic attacks and is attending the psychiatric department of Craigavon hospital;

(iii) in relation to the Tribunal's finding that the claimant could take his own medication, but perhaps might need someone to keep an eye on him to ensure that he does not forget to take it (concerning the award of the lowest rate of care component rather than a higher award), the Tribunal erred in coming to the contradictory conclusions that he both took his own medication and also needed someone to keep an eye on his medication.

16. The Department's representative Mrs Gunning made an additional point in her written submissions, for convenience numbered as (iv) hereafter) to the effect that the Tribunal erred, whilst considering the claimant's eligibility for higher rate mobility component, by applying the wrong test. As Mrs Gunning has stated in her letter of 8 March 2000, whether or not a person is regarded as being virtually unable to walk is determined by how far he can walk, taking account of the manner and speed of walking, before the onset of severe discomfort. In the present case the Examining Medical Practitioner has recorded that the claimant claimed to be in pain all the time and expressed the opinion that he could walk 300-400 metres before the pain would be severe. In the circumstances Mrs Gunning has submitted that, as the Tribunal's conclusion was based on that opinion, the wrong test as to whether the claimant could be regarded as being virtually unable to walk has been applied.
17. In relation to (i) I conclude that there is no substance in the point as, after consideration of the documentary evidence, the General Practitioner's records and oral evidence from the claimant, the Tribunal in its reasons has made entirely clear why it preferred the evidence of the Examining Medical Practitioner.
18. In relation to (ii) I conclude that the Tribunal clearly considered the relevant evidence and was entitled to come its decision on this point. In particular, as Mrs Gunning has pointed out in her written submissions dated 8 March 2000, the fact that there has been a diagnosis of a particular condition by responsible and medical opinion does not automatically lead to an award of benefit of the lower rate mobility component. The Tribunal was required to apply the appropriate statutory test set out in section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992) and this it has clearly done.
19. In relation to (iii) I conclude that the Tribunal has also applied the correct statutory test (see section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) and that, on facts, the Tribunal was entitled to hold that the claimant was so severely disabled physically or mentally that he requires by day, in connection with his bodily functions, attention from another person for a significant portion of the day. Such a finding attracts the lower rate of the care component and the Tribunal has not erred in law in so finding.
20. In relation to (iv) the Tribunal has found as a fact that the claimant "can walk at least 300-400 metres without severe discomfort in reasonable time, speed and manner." The Tribunal relied, in coming to this conclusion, on the Examining Medical Practitioner's detailed clinical findings and concluded that the Examining Medical Practitioner's findings assessment is "the more accurate and reliable assessment of walking ability" than the General Practitioner's comments. The Tribunal has also found that there is nothing in the medical records to cast doubt on the Examining Medical Practitioner's findings or opinion as regards walking ability. In the circumstances the Tribunal stated that "we believe that the appellant can walk a reasonable distance in reasonable time, speed and manner without severe discomfort", and also that "there is no evidence that the exertion of walking would constitute danger to life or be likely to lead to serious deterioration in health or that any of the high rate criteria is satisfied."
21. The problem is that the Tribunal's conclusion was based on the Examining Medical Practitioner's finding that:-

"I am of opinion that he is capable of walking 300-400 metres

before pain is SEVERE (sic). He claims to be in pain at all

times ...."

The Examining Medical Practitioner stated this in reply to the question "over what distance and terrain would the person be able to walk before the onset of severe discomfort? (if any)". This is the correct question in accordance with the statutory provisions. However, the Examining Medical Practitioner's answer does not deal directly with this question.

22. Undoubtedly it is not always necessary for each question to be answered specifically by an Examining Medical Practitioner to enable relevant information to be conveyed to the Adjudicating Authorities to assist in their decision making process. However it is necessary for the Adjudicating Authorities specifically to direct their minds to the correct question even if the Examining Medical Practitioner's opinion does not specifically deal with the appropriate question. This is especially important when the Adjudicating Authorities purport to rely on the findings of the Examining Medical Practitioner in contradiction to other findings.
23. As Mrs Gunning has pointed out, it seems relatively clear that the Tribunal has based its decision on this point on its preference for the Examining Medical Practitioner's opinion as opposed to the General Practitioner's evidence, and this opinion was based on the wrong test (- namely that the claimant could walk 300-400 metres before the pain would be severe), rather than the correct test (which requires the Adjudicating Authorities to consider the claimant's ability to walk before the onset of severe discomfort).
24. Thus I conclude that the Tribunal has erred in law by applying the incorrect test in relation to whether the claimant could be regarded as being virtually unable to walk.
25. For the reasons stated I am satisfied that the Tribunal's decision is erroneous in law. Accordingly I allow the appeal and set aside the decision of the Tribunal. Consequently I refer the matter back to a differently constituted Tribunal for a rehearing. However, the fact that this appeal has been allowed should not be taken as any indication as to the ultimate success of the claimant's appeal to a Tribunal.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

14 AUGUST 2000