Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C9/00-01(DLA) (15 January 2001)

 


Decision No: C9/00-01(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 27 January 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself against a decision dated 27^th January 2000 of an Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The Tribunal had disallowed the claimant's appeal against a decision of an Adjudication Officer (now known as a Decision Maker) dated 27^th September 1999. The decision was in connection with the claimant's claim for Disability Living Allowance. The claimant had appealed against that decision on an appeal form dated 15^th October 1999. His grounds of appeal were that the decision was wrong because:-

1. It was based on an earlier medical report and not the latest examination by the Examining Doctor.

2. If the decision was based on the latest report then the Examining Doctor submitted a false report based on an assumption which could not have been made from examination.

2. The claimant also stated that he had found it almost impossible to read the said medical report and had asked the Department for a type written copy but had been unable to obtain same.
3. In his appeal to me the claimant made mention of some part of his appeal form having been deleted. I am not quite clear as to which part he refers to but I do note on a copy of the appeal form which is in my papers that the second ground of appeal is hatched in highlighter. I would not regard this as being deletion as the grounds are clearly visible and it may be that someone intended to highlight the second ground. I do not know but in light of my decision which is set out in full in the final paragraph the claimant will have a further opportunity to indicate his grounds.
4. The Tribunal's decision was made after the coming into force of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 as regards Disability Living Allowance. The significance of this is that the Tribunal was not required by legislation to record findings of fact as it had been under the Regulations previously in force. The Tribunal's reasons for the decision were brief in the extreme and were as follows:-

"This claimant has genuine arthritic restrictions but currently they are not of severity which would render claimant unable or virtually unable to walk."

5. The claimant had indicated to the Tribunal that he did not wish to pursue his appeal in relation to the care component and having perused the evidence I consider that the Tribunal was quite entitled to accept the claimant's view on that and that no reasoning was required in relation to the care component specifically.
6. The claimant appealed to me and his grounds of appeal were that the Tribunal had completely ignored the reasons for his original appeal. He stated that the original reasons were that the Adjudication Officer's decision was based on a mistaken or dishonest report by the Examining Medical Practitioner. In subsequent correspondence he made further comment on the Examining Medical Practitioner's report.
7. Observations on the appeal were made by Mrs Gunning of the Decision Making and Appeals Unit of the Department, representing the Decision Maker. Mrs Gunning opposed the appeal. With regard to the allegation that some parts of the grounds of appeal had been deleted Mrs Gunning commented that her papers did not indicate any deletion and the grounds of appeal were dealt with in the Adjudication Officer's submission. Mrs Gunning is quite correct in relation to the question of the grounds having been dealt with in the Adjudication Officer's submission and it appears from the documents that the grounds of appeal were put in full before the Tribunal.
8. As regards the adequacy of the reasoning Mrs Gunning commented that the claimant had had the opportunity at the hearing to put forward the basis on which he was challenging the Adjudication Officer's decision, that the Tribunal had taken evidence from the claimant about his condition, his medication and how he had made his way to the Tribunal and had reached the conclusion that the claimant's restrictions, though genuine were not sufficient to render him unable or virtually unable to walk.
9. Mrs Gunning in opposing the appeal submitted that the claimant had not identified any error of law in the Tribunal decision and that although the reasons were brief the Tribunal had considered the relevant criteria and on the evidence available and in the light of the record of proceedings was entitled to decide as it did.
10. The record of proceedings is relatively brief and is as follows:-

"Appellant attended and indicated he was pursuing only this mobility element appeal. Appellant is aged 57 and lives at home in 2 storey house with bedroom

upstairs. He described pains he suffered in his ankles, feet and knees which he described as arthritis. He also suffers from hypertension and had a history of DVT's. He spends his day at home where he uses a computer for research. He described how he gets help with shopping from a neighbour but occasionally also comes into Belfast City Centre by bus to visit either Belfast Central Library or Linen hall Library.

His medication was described and includes Warfarin, Codeine (1 daily) and distalgesic (taken occasionally up to maximum of 4 per day). He had a stick but does not have protective stockings or use knee support. He is expecting further tests for his arthritis.

He described (and Mr Agnew confirmed) how he had reached the Tribunal today which involved walking from a central car park (estimated to be 50 yards at least from Tribunal). He had walked slowly and stopped but was not clear as to whether he stopped due to traffic light and traffic or other reason."

11. With regard to the claimant's comments on the Examining Medical Practitioner's (EMP) report, the Tribunal has not made mention of the report in its reasons and I cannot ascertain whether or not it relied on that report. Had it done so, however, I would not have said it had erred in law. The EMP was asked, amongst other things for his opinion on the claimant's walking ability and that was what he gave. He can base this report on his clinical findings on examination and on his observations and use of his medical expertise. I am not quite certain of exactly the nature of the claimant's complaints about the report. I would state, however, that a doctor can justifiably form an opinion that a person can walk a greater distance than that person was observed to walk. It is that doctor's expert opinion on capacity that is sought not merely a record of his observations. However if the claimant has contentions to make about the report he may make same to the Tribunal to which I am remitting this case for reasons given later. That Tribunal may or may not accept the contentions and it will be for that Tribunal to decide on the weight it gives to a particular report.
12. I am setting this decision aside as in error of law for inadequate reasoning but not on the grounds stipulated by the claimant. In my view the Tribunal has not either set out or clearly indicated its view of the fact situation in this case. It is not clear from the decision what the Tribunal considered to be the claimant's walking ability and it is therefore impossible for the claimant to understand the Tribunal's conclusion in the matter. The claimant had stated in the claim form that he could only walk 30 metres or yards (the claim form was not clear as to which) before he felt severe discomfort. This might, if accepted, have qualified as being virtually unable to walk. His GP had stated that he had "pain probably present on walking even short distances. No record of how far he can walk before having to stop." There was indication at hearing of the claimant having walked for more than 50 yards to get to the Tribunal that day but no indication of how he felt while doing so other than that he had to stop but was unclear as to why he had had to stop. The Examining Doctor was of the opinion that the claimant could walk 150 yards on the flat in three to four minutes before the onset of severe discomfort which would be unlikely, if accepted, to have supported a conclusion of virtual inability to walk.
13. There appears therefore to have been a conflict of evidence as to this crucial issue of the claimant's walking distance before the onset of severe discomfort. No evidential assessment was made. It is not apparent what evidence the Tribunal accepted. It may be, but this is purely speculative, that in light of the claimant's evidence as to how he had got to the hearing the Tribunal considered his walking ability must have been greater than he had stated in the DLA claim form. That however is not clear. Neither is it clear whether the day of the hearing was a representative day with regard to the claimant's walking ability.
14. Overall, reading the decision it is impossible to understand why the Tribunal reached the conclusion it did. I am not saying that the conclusion is necessarily in error or is necessarily correct. The Tribunal should, however, have explained the basis upon which its conclusion was reached. In this case that was not done.
15. My decision therefore is that the Tribunal's decision is set aside as in error of law for inadequate reasoning and that the matter is remitted, this not being a case where I can make the decision which the Tribunal should have made, for rehearing before a differently constituted Tribunal. That Tribunal should indicate with sufficient clarity the factual basis upon which it has reached its conclusions and should also indicate its evidential assessment with reasons for that assessment. Such reasons need not be lengthy but should deal with the claimant's contentions in relation to the medical report.

(Signed): M F BROWN

COMMISSIONER

15 JANUARY 2001