Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C7/00-01(DLA) (12 February 2001)

 


Decision No: C7/00-01(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
1. This is an appeal by the claimant, leave having been granted by myself, against a decision dated 19^th January 2000 of an Appeal Tribunal (hereinafter called "the Tribunal") sitting at Dungannon.
2. The Tribunal had decided that the claimant was not entitled to the mobility component of Disability Living Allowance from 6^th February 1998 and not entitled to the care component of that Allowance from 6^th February 1998 (both dates inclusive). It had also decided that an Adjudication Officer on 4^th December 1997 was ignorant of the material fact that the appellant had care needs and accordingly grounds existed on 27^th July 1998 to review the Adjudication Officer's decision of 4^th December 1997. That decision of 4^th December 1997 had awarded the claimant the higher rate of the mobility component from 6^th February 1998 to 5^th August 1999. It had subsequently been reviewed by an Adjudication Officer's review decision dated 27^th July 1998 which added to the existing higher rate mobility component the further award of the lowest rate care component from 1^st July 1998 to 5^th August 1999. There had been a subsequent Adjudication Officer's review decision dated 3^rd February 1999 (which was in fact the decision under appeal) which reviewed but did not revise the decision of 27^th July 1998. Effectively then when the claimant appealed to the Tribunal she was in possession of an award of the higher rate mobility component from 6^th February 1998 to 5^th August 1999 and of the lowest rate care component from 1^st July 1998 to 5^th August 1999. The decision of 3^rd February 1999 (the decision under appeal) was what is known as a "in time" review decision, the application for review of the decision of 27^th July 1998 having been made within three months of its notification to the claimant.
3. The award of benefit being time limited, the Tribunal was not subject to the strictures of section 31(6) of the Social Security Administration (Northern Ireland) Act 1992. It was within its powers to consider both components of the award. It is also apparent that the claimant was aware that her entitlement to the allowance was being considered by the Tribunal. The submission by the Adjudication Officer which was also before the Tribunal highlighted what the Adjudication Officer considered to be inconsistencies in the claimant's evidence and stated "I respectfully request the Tribunal fully investigate [the claimant's] condition in relation to both her physical and mental state and determine whether her condition is such that she satisfies the criteria for an award of Disability Living Allowance care component at any rate and if so from what date". In addition the matter of the entitlement to the mobility component was raised by the presenting officer at the Tribunal hearing on 8^th July 1999. The presenting officer is recorded as stating:-

"Ask panel to decide if virtually unable to walk. If not then low rate mobility component appropriate – panic attacks and rely on submission in relation to care."

4. At that hearing the Tribunal adjourned to seek a report from an Orthopaedic Surgeon. It recorded the adjournment decision as follows: -

"Adjourned. Independent Tribunal Service please obtain an Orthopaedic Surgeon's report. Panel is concerned with the period from February 1998. Consultant please examine and report on clinical state of appellant's back, legs and knees. Appellant claims to be very restricted in the activities of daily living as regards looking after herself and claims walking is restricted to 25 yards. Disability Appeal Tribunal should be grateful if Consultant would also give an opinion indicating to what extent appellant's walking is limited, if at all and also how her medical condition would effect her ability to attend to her own bodily functions such as dressing/undressing, getting into and out of bed, washing, bathing/showering, cooking a main meal for herself and so forth."

When the matter came back before the Tribunal, which was differently constituted and therefore conducting a rehearing, the Tribunal recorded:-

"Parties aware awards in dispute and of Tribunal's powers."

5. At that hearing the Tribunal had included in the documents before it a report from Mr Osterberg dated 24^th November 1999, a report from the claimant's General Practitioner dated 14^th January 2000 and a supplementary submission dated 11^th October 1999. It also had the documents which had been before the previous Tribunal. The claimant did not consent to the release of her medical records.
6. In its decision the Tribunal highlighted its difficulties with the evidence presented and set out its evidential assessment very fully.
7. The claimant appealed to me on an OSSC1 (NI) form dated 16^th May 2000 to which was attached a letter dated 25^th May 2000. Therein the claimant set out her grounds of appeal. In essence these were that Mr Osterberg had stated "Her present condition generally supports the degree of disability alleged and would certainly considerably restrict her mobility". She submitted that the Tribunal in awarding no rate of Disability Living Allowance had given insufficient and inadequate reason for the rejection of Mr Osterberg's specialist opinion which, it was submitted, supported the degree of disability detailed. It also referred to the medical evidence from the claimant's General Practitioner.
8. In his letter of 12^th September 2000 Mr Fletcher of the Decision Making and Appeals Unit of the Department opposed the appeal. He submitted that, with one exception, the Tribunal's conclusions on the Consultant's report were correct. The one exception Mr Fletcher submitted was that the report was not internally inconsistent as regards the alleged propensity to fall. I agree with Mr Fletcher's understanding of the report that "the Consultant considered there was no history of a fall or injury prior to the onset of the knee condition such that would explain its development. I do not think he discounted [the claimant's] evidence that she had fallen since the condition developed".
9. I further agree with Mr Fletcher that this erroneous conclusion did not invalidate the Tribunal's decision. He states:-

"While the Consultant did not discount the possibility of falls, neither did he express an opinion as to how frequently these would occur or refer to any occasions on which a fall had actually taken place. It is clear the tribunal critically examined [the claimant's] claims to have fallen against the totality of the evidence presented in the case and considered the evidence to contain inconsistencies. Having had the advantage of seeing and hearing from [the claimant], I submit it was entitled to reject her claims on that basis."

10. I am in agreement with that statement. It was for the Tribunal, not for any medical practitioner, however expert, to assess the evidence before it and reach its own conclusions. This Tribunal has not erred in so doing.
11. I do not consider that the Tribunal erred as stated by the claimant. It has set out very fully the difficulties which it had with Mr Osterberg's report and with the evidence from the claimant's General Practitioner and the claimant and having read the papers, I can understand the Tribunal's difficulties with the one exception mentioned by Mr Fletcher. The Tribunal's evidential assessment is a reasonable one.
12. For example, as did the Tribunal, I find it difficult to ascertain from Mr Osterberg's report precisely what degree of disability was being alleged to him and indeed precisely what degree he accepted. In the section headed "Current Problems" in that report various difficulties are set out. The section is as follows:-

"Her knees are her principle [sic] source of disability especially on the right. She describes the knee problems as starting with locking episodes which now affect both knees and that she has fallen on occasions when her right knee has given way. In the past year she has become increasingly disabled and needs a stick both outdoors and indoors if on her own. She has low back pain but this does not radiate into either leg. It does however, prevent her from carrying out any household tasks. She does not cook and admits that she is now highly dependent on her husband for looking after her. She is particularly depressed at having put on so much weight (now 18 st) and is seeing a dietician next week.

She has difficulty in getting about the house and has had a handrail fitted to help her going upstairs with both hands; even doing this often requires help from her husband. She has also had handrails fitted on her toilet and can manage this herself. She can dress herself except for putting on tights. She states that she hardly ever goes out and does not drive. She has recently been referred to a psychiatrist, seeing him 8-10 weeks ago and again last week."

13. As regards the examination and investigations the report states as follows:-

"INVESTIGATIONS:

It would appear that she had an MRI carried out at Musgrave Park Hospital possibly two years ago. I have enquired there, she is not registered under that name. She states that other x-rays are at the South Tyrone Hospital.

ON EXAMINATION:

[The claimant] is a large, very heavily built lady. She walked with a waddling type of gait, limping on her right leg and walking in a very cautious manner without any aid. She was easy to communicate with. She was emotional at times.

She was able to sit in a chair and get up without aid but needed a little help getting on and off the couch.

Head, neck, shoulder, arm and upper trunk was entirely normal.

Her spine showed no deformity but she was very apprehensive indeed on forward flexion, scarcely getting her fingertips to knee level. There was diffuse tenderness over the lower back, sacrum and coccyx. She stated that she had pain in sitting on any hard surface.

Both legs were examined and compared. Her hip joints are normal. She has marked patellar femoral crepitus and tenderness over the front of both knees where she has a full range of movement and no evidence of patellar instability. Both knees show slight valgus deformity. There is no effusion and all ligaments were stable on testing. Her ankles and feet were normal.

COMMENT:

[The claimant] gives a history of increasing disability due to her continuing knee problems and admits that depressional aspects are playing a significant part so that she now virtually never goes out. Clinical examination reveals no obvious cause for being so markedly protective towards her lower back.

There is of course, no doubt that her degree of overweight is a very significant factor and would make management of her back and knee condition difficult, if not impossible. Her present condition generally supports the degree of disability alleged and would certainly considerably restrict her mobility.

In fairness to [the claimant] to fully assess her physical problem it would be necessary to see up to date x-rays of her lower back and both knees and that the latter should include a skyline view of both knee caps."

14. It will be seen from that report that it contains little comment on the claimant's walking ability in terms of speed, distance, time etc. though it does state that mobility would be considerably restricted. Also the claimant is stated not to cook rather than to be unable to cook. She is also stated to need a stick both outdoors and indoors "if on her own". Mr Osterberg can find no reason for the protection of the lower back which is stated to prevent the claimant from carrying out any household tasks. In addition there are of course the normal clinical findings over the upper limbs and back and ankles and feet and hips and the clinical findings in relation to the knees which do indicate crepitus and tenderness but a full range of movement and no evidence of patellar instability. It also appears that the ligaments were found to be stable on testing. These last would, of course be particularly relevant where claims of repeated falls are made. The report's final sentence set out above and particularly the words "In fairness to [the claimant]" also give some indication that Mr Osterberg may not have been of the view that the claimant's physical condition explained her stated disability.
15. As I said previously I can quite clearly see the difficulties which the Tribunal had with this report and can understand why the Tribunal emphasized the clinical findings and can understand why it preferred to place reliance on those findings rather than on anything else.
16. In addition there is the further complication that when considering this claimant's ability to walk it appears that it was only limitations in the walking ability resulting from the physical condition as a whole which could be taken into consideration. (Regulation 12(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1991). There was no issue raised or apparent that the claimant could satisfy Regulation 12(1)(b) [amputees] or 12(2) [blind and deaf] or 12(5) [severe impairment of intelligence].
17. At the hearing on 19^th January 2000 the claimant's representative is recorded as having stated as follows with relation to Mr Osterberg's report:-

"Orthopaedic Surgeons report – current problems as related to him by appellant. The examination section referred to. Suggest that two last paragraphs are of importance. Supports degree of disability alleged."

18. The Tribunal was in no way obliged to take the same view of the evidence as the representative took and was in no way obliged to indicate any view of the evidence in advance of the decision. Also the problems related to Mr Osterberg would not necessarily of themselves fulfil the criteria for the mobility and care components of Disability Living Allowance.
19. Many of the needs mentioned in the claim forms are not included in the statement of disabilities to Mr Osterberg.
20. The Tribunal's view of the evidence from Mr Osterberg seems to me to be reasonable and it was entitled to place the reliance it did on the clinical findings.
21. It is perhaps unfortunate that the claimant's medical records were not before the Tribunal. It is always desirable for a Tribunal to have the fullest medical evidence available.
22. The claimant had refused her consent to release of the records even though she had brought her records to the previous hearing (though I do not know if she released them to the earlier Tribunal). The instant Tribunal, aware of the refusal of consent, reached its own conclusions on the evidence before it. It was under no obligation to reach preliminary conclusions on the evidence before it and then to ask the claimant if she wished a further opportunity to produce evidence in the form of medical records. As an adjudication body the Tribunal was entitled to decide the matter on the accepted evidence before it. This it did. I can find no error in its procedure.
23. I would, however, comment that it might have been helpful had the Tribunal indicated that there were parts of the evidence with which it had difficulties. That might have given the claimant some indication that a successful outcome was not certain. The Tribunal did not, however, err in law in not doing so. It gave the claimant ample opportunity to present her case and to deal with the presenting officer's submissions. It might also have been helpful to the Tribunal had the presenting officer made a submission on the additional evidence. The Tribunal afforded her an opportunity to do so.
24. In essence the Tribunal was dealing with the question of whether or not up to and including 3^rd September 1999 there were grounds to review and revise in the claimant's favour the decision of 27^th July 1998. That decision awarded the claimant the low rate of the care component and implicitly confirmed the earlier award of the higher rate mobility component. The Tribunal was also dealing with whether the care and mobility conditions were ever satisfied from 6^th February 1998 to 3^rd February 1999 (inclusive). The claimant contended her care needs were greater than had been awarded, the presenting officer contended they were not and also questioned whether any rate of Disability Living Allowance was merited. He simply referred this last question to the Tribunal.
25. The onus of proof when a revision of an earlier decision is sought is on the party seeking the revision.
26. I am satisfied that on the accepted evidence before it the Tribunal was entitled to conclude (as it obviously did) that the claimant had not established any grounds for revision of the decision of 27^th July 1998 whether by reason of increased care needs or by way of lengthening the time of the award made.
27. It then becomes necessary to consider whether the Tribunal erred in law in concluding that the claimant was not entitled to an award of either component. I should say from the outset that if the standard of proof here was the same as on an initial decision on entitlement there would have been no error of law in the Tribunal's decision. The Tribunal would be quite entitled to the conclusion that entitlement was not proven on the balance of probabilities.
28. At the time of the Tribunal decision in this case it was settled law that a Tribunal could consider both components of the Disability Living Allowance where, as here, an existing award was time limited and only one of the components was the subject of the appeal. It did not have to consider the non appealed components as regards entitlement and rate but it could do so. (S.31(5) of the 1992 Act).
29. In this case as invited to do by the presenting officer, the Tribunal did consider both components. It was obliged to consider the care component and entitled to consider the mobility component. The S.31(6) protection for life awards did not apply in this case. The question of the standard of proof to be adopted and whether the Tribunal's decision fulfilled that standard then falls to be considered. The Tribunal was not itself conducting a review. Its powers to consider both components were not founded in any review jurisdiction but in its inquisitorial role as they would be for any other benefit. The Tribunal could have declined to fulfil that role, at least in relation to the mobility component entitlement and rate based on S.31(5). However, equally, it was entitled to fulfil that role and indeed in relation to the care component was obliged to do so.
30. On appeal it was thus dealing with the two questions set out above.
31. As regards the first question, in my view the Tribunal correctly considered that the claimant had not established grounds for review and revision in her favour. Did there then arise, on the evidence, an issue which it needed to explore (following its inquisitorial role) in relation to the existing award?
32. In my view the Tribunal was entitled to its conclusion that an issue did so arise. There were inconsistencies in the evidence presented on the claimant's behalf. The report of 31st December 1998 from the claimant's General Practitioner indicated that the encouragement (on which the existing low rate care component award was based) was not required to avoid self-neglect. There was an obvious issue meriting exploration by the Tribunal as regards the claimant's entitlement to the care component from the outset of the hearing on 17^th August 1999.
33. At the hearing the Tribunal explored, as it was entitled to do, the claimant's treatment. It was ascertained that the claimant, who stated she had only been able to walk 25 yards for the past 1-2 years had not seen an Orthopaedic Consultant in the past two years and had not seen a rheumatologist or any consultant about her knees and had only had one knee x-rayed. The Tribunal exercised its powers to consider the mobility component. I consider that in light of the evidential inconsistencies and the treatment history it was entitled to consider the entitlement to the mobility component. It was also requested to do so by the presenting officer.
34. I consider therefore that the instant Tribunal was properly pursuing its inquisitorial role in considering the entitlement to both components and this view is confirmed by the clinical examination of Mr Osterberg.
35. What standard of proof did the Tribunal have to apply in so doing? Essentially it seems to me that the standard of proof required to alter the Adjudication Officer's decision of 3^rd February 1999 was that the Tribunal was satisfied on the balance of probabilities that the existing award was wrong. In this case the Tribunal was not hearing an appeal against entitlement but an appeal against a decision refusing to revise an earlier decision. It therefore had to be satisfied that that earlier decision should be altered.
36. I then proceeded to examine the Tribunal's reasons to ascertain that that standard of proof was applied. As I mentioned previously the Tribunal's decision is very

thoroughly recorded and has dealt clearly and fully with the Tribunal's evidential assessment. I find the assessment to be reasonable. Essentially the Tribunal has based its decision on the clinical findings of Mr Osterberg, the treatment pattern and its assessment of the appellant's evidence.

37. The decision appears to me to have applied the correct standard of proof as regards the mobility component and I have no fault to find with the decision in relation to that component on the accepted evidence. However, the award of lower rate care component was initially based on the claimant's having a requirement of encouragement which fulfilled the condition of requiring attention in connection with bodily functions for a significant portion of the day.
38. The Tribunal has set out its difficulties with the evidence as regards the claimant's care needs but it does not set out whether or why it considers that the claimant does not need encouragement. Alternatively it does not state why such encouragement as she does need either does not amount to attention in connection with bodily functions or does not amount to such attention for a significant portion of the day.
39. This omission is perhaps understandable as the Adjudication Officer's decision of 28^th July 1998 (which awarded the care component) is very unspecific in terms of just what encouragement was accepted as needed and in connection with what bodily functions. In addition the decision under appeal (that of 3^rd February 1999) appears to refuse to alter the award on the basis that inability to prepare a cooked main meal is accepted. This inability was not the basis of the award on 28^th July 1998. The Tribunal has set out fully why it did not accept that the claimant was unable to prepare a cooked main meal.
40. The claimant in this case had been in receipt of an award of the lower rate care component. It was necessary for the Tribunal to conclude that the conditions were not satisfied and to satisfactorily explain this to the claimant. Its conclusion that the conditions were not satisfied is apparent. However its reasons as regards the question of "encouragement" are not sufficient to explain to the claimant why the Tribunal is satisfied that an award on this basis should not have been made. Nor am I satisfied that the correct standard of proof was applied to this component. For those reasons only I consider that the Tribunal erred in law and I set its decision aside.
41. I do not consider that this is a case where I can give the decision which the Tribunal should have given. There are obvious evidential issues to be resolved and the Tribunal with its breadth of experience is the more appropriate body to resolve them and to make its own evidential assessment. In addition my comments above relate to the evidence before the instant Tribunal. I would wish to afford an opportunity for further evidence to be produced.
42. I therefore remit the matter to a differently constituted appeal Tribunal. While it is a matter for the claimant and her advisers to decide, I would state (particularly in light of Mr Osterberg's report) that it is likely to be of assistance to the new Tribunal if it has the claimant's medical records and particularly any x-rays, MRI scans and reports thereon.
43. I direct the new Tribunal, when considering the question of encouragement to bear in mind decision C46/96(DLA), a decision of the former Chief Commissioner in Northern Ireland.
44. The new Tribunal will be unable to take into account circumstances not pertaining at the date of the decision under appeal i.e. 3^rd February 1999. Evidence may of course be obtained after that date but to be relevant it must relate to circumstances pertaining up to and including that date.

(Signed): MOYA F BROWN

COMMISSIONER

(Dated): 12 FEBRUARY 2001