Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C8/00-01(DLA) (12 March 2001)

 


Decision No: C8/00-01(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 21 July 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 lowest rate of the care component of Disability Living Allowance from 2 May 1998 until 20 July 2001 and is entitled to the lower rate of the mobility component of Disability Living Allowance from 21 July 1999 until 20 July 2001. Leave to appeal was granted by a Commissioner on 29 August 2000.
2. The claimant previously claimed Disability Living Allowance from 30 July 1993 and was awarded, on appeal, the higher rate of the mobility component and the lowest rate of the care component from 30 July 1993 until 1 May 1998. On 24 November 1997 the claimant made a renewal claim. After an examination by an Examining Medical Practitioner, an Adjudication Officer on 18 March 1998 awarded the higher rate of the mobility component from 2 May 1998 until 1 May 2000 but disallowed the care component from and including 2 May 1998. On review a different Adjudication Officer on 7 May 1998 reviewed the decision of 18 March 1998 but did not revise it. The claimant appealed outside the time limit but a Chairman on 30 September 1998 admitted the appeal for hearing. On 8 October 1998 the Department's medical officer provided advice in relation to the appeal. The appeal came before a Tribunal on 27 November 1998 but was adjourned to enable the Independent Tribunal Service to obtain a report from a Consultant Psychiatrist in relation to the issues in the case. At this hearing the Adjudication Officer in attendance made it clear that he was submitting that the Tribunal should look at the award of the higher rate of the mobility component as, in light of the medical evidence from the Examining Medical Practitioner's report, he was contending that the Adjudication Officer's decision was erroneous. The case came before the Tribunal again on 4 May 1999. This Tribunal was differently constituted as, of the three members of the earlier Tribunal, only a Mrs McLaughlin was a member of the later Tribunal. Again this Tribunal was adjourned, this time to enable the appellant's representative to appear. Also it was made clear by the new Chairman that there was an issue concerning the continuing award of mobility component.
3. The Tribunal, which eventually heard the appeal on 21 July 1999, made the following findings of fact material to its decision in relation to the care component:-

"The appellant's hysterical condition would interfere with his ability to perform the tasks associated with preparing a cooked main meal due to the paralysis in the right side including arm and leg for which there has been no physical diagnosis despite persistent testing. The appellant is right handed and therefore lifting pots and pans including those for one person, turning taps, chopping vegetables would all be restricted.

The appellant requires help with dressing and undressing. He has a walk-in shower and can attend to his own toilet needs. With his stick he would be safely mobile in his own home except during a panic attack. He would require some supervision using stairs.

Night care needs were not claimed.

The awards in this case were limited because a period of counselling which he is to undertake may improve his condition and it would be appropriate to consider his care in the light of this."

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

"The appeal is allowed because the Tribunal find that [the claimant] requires help to prepare a cooked main meal. We did not find that the level of help with bodily functions would amount to either help for a significant portion of the day nor would it be frequent attention throughout the day.

We did not accept that he would require continual supervision throughout the day and no claim in respect of this or of night care needs was made."

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

"Appeal allowed. The appellant is entitled to the low rate care component of DLA from 2.5.1998 – 20/7/2001.

Any DLA paid in this period is offset against the award now made."

6. The Tribunal made the following findings of fact material to its decision in relation to the mobility component:-

"The appellant was awarded high rate mobility for the period 2 May 1998-1 May 2000. The medical evidence from Doctor McConnell indicates that the appellant's main problem is his mental state due to a "psycho-neurosis in the hysterical presentation". The Tribunal find that this is not a physical disablement. The Tribunal found that the consultant attending [the claimant] did not find a diagnosis of angina. His hypertension is controlled by medication. He has some arthritis of shoulder, knee and back. The Examining Medical Practitioner found in February 1998 that limb function was in his opinion full. No neurological organic findings exist in relation to his numbness and hemiparisis. We accept that his walking ability is restricted but that the cause of this is his hysterical complaint and not due to any significant physical disablement. We did not accept that his hypertension, suggested angina or arthritis would be severe enough to prevent him walking in the light of the cardiology investigations of Doctor Dalnare, which did not find evidence of angina. Appellant has had no hospital attendances with arthritis, had some physiotherapy but none recently (since 1997).

The Tribunal found that [the claimant] would require supervision when walking out of doors in unfamiliar routes because of his hysterical condition which at times and quite regularly (2/3 times per week) cause him to fall down and he would be unable to rise unaided as a result. Supervision would be required to assist him in these instances."

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

"The appeal in respect of higher rate mobility was not allowed because the Tribunal found that the appellant's condition was predominantly caused by his mental state and did not therefore amount to a physical disablement. We did not accept that the other physical conditions were significant enough to render him virtually unable to walk.

We accept that his mental condition interferes with his walking ability but there is not a physical cause for his.

In respect of the low rate we consider that his episodes of falling due to tunnel vision eventually would require him to be supervised when walking out of doors on unfamiliar routes."

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

"Appeal disallowed the appellant is entitled to the lower rate mobility component of DLA from 21/7/1999 – 20/7/2001."

9. The claimant sought the leave of the legally qualified member (the Chairman) to appeal to a Commissioner but such leave was refused on 13 January 2000. However, as stated at paragraph 1 herein, a Commissioner on 29 August 2000 granted leave to appeal.
10. A hearing of this appeal was arranged and took place before me at Armagh on 17 January 2001. The claimant, who was not present, was represented by Mr Druse of Armagh Citizens Advice Bureau while Mrs Gunning of the Department's Decision Making and Appeals Unit, appeared on behalf of the Department (as successor to the Adjudication Officer) due to a change in the legislative structure for appeals. Accordingly not only did I have the benefit of oral submissions from Mr Druse and Mrs Gunning but I also had the benefit of the original submission dated 18 October 1999 from Mr Druse attached to the original application for leave to appeal, the Department's written observations dated 6 April 2000 (from Mrs Gunning); the written comments in reply from Mr Druse dated 15 May 2000; further observations from the Department in reply to a direction from the Legal Officer made by Mrs Gunning and dated 16 November 2000 and also further written comments in reply from Mr Druse dated 6 January 2001.
11. At the hearing it became clear that the only real issue in the appeal was whether the Tribunal had erred in law in applying the law concerning high rate mobility when it held that the appellant was not entitled to the higher rate because "the appellant's condition was predominantly caused by his mental state and did not therefore amount to a physical disablement". Accordingly both Mrs Gunning and Mr Druse directed their submissions to this issue.
12. It is relevant, in my view, that in the findings of fact material to the Tribunal's decision in relation to the care component, the Tribunal found that:-

"The appellant's hysterical condition would interfere with his ability to perform the tasks associated with preparing a cooked main meal due to the paralysis in the right side including arm and leg for which there has been no physical diagnosis despite persistent testing."

It seems therefore that the Tribunal has found that there has been a paralysis affecting the right side, even though the condition has been labelled as "hysterical". Under the provisions of section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 a person can only obtain the higher rate mobility component, in circumstances such as the present, where "he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so". The question that immediately arises is whether a physical disablement must have a physical cause or whether it can have a non-physical cause.

13. When considering this question I have obtained assistance from the Great Britain decision of Mr Commissioner Jacobs (when he was a deputy Commissioner), namely CDLA/16484/1996 in which, when setting out the proper approach for a Tribunal in a not dissimilar case, he stated the following:-

"9. I will explain, for the benefit of the tribunal which rehears this case, the correct approach to a case where the limitations on a claimant's mobility may be wholly or partly attributable to a mental cause. It is necessary to identify the chain of causation which leads to those limitations. The chain begins with an injury, disorder or disease. This produces disablement. That disablement leads to limitations to a person's mobility.

10. There is, then, a three link chain. The second and third links cannot be merged by arguing that the limitation on mobility is itself a physical disablement. The person must have a physical disablement or condition which is separate from and gives rise to those limitations: see O'Connor L.J. in the Court of Appeal decision in Harrison v Secretary of State for Social Services reported as an Appendix to the decision of the Commissioner in R(M) 1/88. This follows from the words "physical disablement such that … he is virtually unable to walk".

11. It is the second link in the chain which must involve a physical disablement. Unfortunately, the Commissioners' decisions which deal with this link in the chain of causation give little guidance on their application by a Disability Appeal Tribunal in cases involving a mixture of physical and mental disablement. This is so for two reasons.

(a) The decisions of Commissioners do not deal directly with the application of the law to the facts of the case, but with whether the tribunal's decision was erroneous in law.

(b) The decisions relate to appeals from Medical Appeal Tribunals. Those tribunals are expert tribunals which are entitled to bring their own expertise to bear on the question before them. Commissioners do not go behind the tribunal's decision on such questions so long as it appears that the tribunal has not misdirected itself in law. However, Disability Appeal Tribunals are not expert tribunals in this sense and must base their decisions on evidence: see the decision of the Commissioner in R(M) 1/93.

12. The leading case is the decision of the Commissioner in R(M) 1/88 which was upheld on appeal to the Court of Appeal in the Harrison case referred to in paragraph 9 above. The Medical Appeal Tribunal had decided that the limitation on the claimant's mobility was attributable to hysteria, which was mental in origin, and not to a physical cause. So far as facts as recounted by the Commissioner show, the claimant's inability to walk was a direct consequence of the hysteria. At least, that seems to be the basis upon which the tribunal made its decision. It does not appear that there was any physical factor which arose as a result of the hysteria which itself led to the limitations on the claimant's mobility. Hysteria might, for example, lead to lack of use of a claimant's legs, which might lead to atrophy of the muscles, which in turn would restrict the claimant's mobility. In such a case, the claimant would have a physical disablement and condition which affected mobility, albeit that the ultimate origin of the physical disablement was the hysteria. It is also possible that the hysteria might be caused by the pain resulting from a physical injury such that the restricted mobility arose from the claimant's physical condition as a whole.

13. Applying the above reasoning to the present case, the proper classification of the claimant's chronic fatigue syndrome is not of itself decisive. Likewise, the ultimate cause of the syndrome is not decisive. What matters is the nature of the disablement which results from it. …"

The Commissioner continued at paragraph 14 with the following remarks:-

"14. … Drawing conclusions from the label which a particular doctor has given to the claimant's symptoms will be of little help. Likewise, the nature of the ultimate origin of the syndrome will be of little help. However difficult the task from the tribunal, the solution always begins with a simple question: what is it that stops the claimant walking?"

14. In my view the Commissioner has set out the correct approach when dealing with cases such as the present one. When limitations on a claimant's mobility may be wholly or partly attributable to a mental cause the adjudicating authorities must identify the chain of causation which leads to these limitations. There must be an injury, disorder or disease. These "conditions" must produce physical disablement, which in turn must lead to limitation to a person's mobility. In deciding whether there is physical disablement, the ultimate origin of the cause of the "condition" is not decisive. Nor will the label which a particular doctor has given to the claimant's symptoms be of any great help. The question is: what is it that stops the claimant walking?
15. Applying these principles to the present case I conclude that the Tribunal has assumed that a psychiatric cause can never result in a section 73(1)(a) "physical disablement". However, in light of Mr Commissioner Jacob's remarks and also the English Court of Appeal decision in Harrison, the Tribunal's approach is not correct.
16. It was argued by Mrs Gunning that the findings of fact material to the decision in relation to the mobility component showed that the Tribunal did not accept that there was any real physical problem. However this was inconsistent, in my view, with the findings set out in the finding of fact material to the decision in relation to the care component to the effect that there was "paralysis in the right side including arm and leg". It seems to me that I am entitled to take this finding of fact into account, even though it relates to the care component, as it is a finding arising out of evidence given in the case which was deciding the claimant's eligibility for a single benefit – namely Disability Living Allowance.
17. I am reinforced in my conclusion that the Tribunal has taken the wrong approach by examining the first sentence of the reasons for the Tribunal's decision in relation to the mobility component where the Tribunal has stated: -

"The appeal in respect of higher rate mobility was not allowed because the Tribunal found that the appellant's condition was predominantly caused by his mental state and did not therefore amount to a physical disablement" (my emphasis).

The use of the word "therefore" clearly, in my view, suggests that the Tribunal took the view that a mental condition can never result in physical disablement. For the reasons stated earlier I conclude that this is not the correct legal position and therefore the Tribunal has erred in law by applying the incorrect test in relation to whether the claimant could be regarded as either being unable to walk or virtually unable to walk.

18. 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 an indication as to the ultimate success of the claimant's appeal to a Tribunal.

(Signed): JOHN A H MARTIN QC

CHIEF COMMISSIONER

12 MARCH 2001