Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C23/02-03(DLA) (12 March 2003)

 


Decision No: C23/02-03(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 the decision of the Appeal Tribunal dated 27 March 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision of a Tribunal dated 27 March 2002. That Tribunal had disallowed the claimant's appeal in relation to Disability Living Allowance and found that the claimant was not entitled to the Allowance from and including 7 September 2001.
2. The claimant's initial grounds of appeal were, in my view, without merit, being that new evidence had appeared after the hearing which was not available to the Tribunal. It is quite obviously not an error of law on the Tribunal's part not to take into account evidence which was not available to it at the time when it made its decision. The claimant also, in an undated letter received in the Commissioner's office on 21 August 2002 stated that the General Practitioner, Dr G… (who had prepared a report dated 25 April 2001 on which the Tribunal placed reliance), was new to the practice, did not know the claimant and was not totally aware of her problems when he filled in his report. She contended that he later amended the report which I take to refer to subsequent letters from Dr. G…. This matter had also been referred to in the letter of appeal to the Tribunal and was raised again at hearing. The letter of appeal to the Tribunal is somewhat confused but it does seem to indicate that the claimant considered that had Dr G… been aware of the full extent of her disabilities he would have put forward additional matters. The claimant made somewhat confused references to Dr B…, her previous General Practitioner, and seemed to try to indicate what Dr B… would have considered her disabilities to be. There appears to be no actual evidence from Dr B… which was put before the Tribunal and obviously the claimant was not in a position to know what Dr B… was likely to have said had he been asked for a report.
3. Observations on the appeal were made by letter dated 26 November 2002 from Mr Fletcher of the Decision Making and Appeals Unit of the Department. Mr Fletcher opposed the appeal. He stated, in relation to the evidence that it was unsurprising that the Tribunal had relied to a large extent on Dr G…'s report in that the claimant had asked him to complete the statement on page 22 of the DLA claim form 580. That page asked the claimant to "ask the person who knows the most about how illnesses or disabilities affect you" to fill in the relevant statement. He submitted further that the request for the factual report asked the General Practitioner to complete the report based on his knowledge of the patient and on the medical records. Mr Fletcher submitted that it seemed apparent from the General Practitioner's reply that he did indeed consult the records before expressing a view. In this particular respect he referred to the answer to question 8 as indicative of the fact that Dr G… had consulted the records. (I am in agreement with Mr Fletcher in that respect). However, Mr Fletcher also submitted that it was likely that the General Practitioner records made available to the Tribunal were not simply Dr G…'s records but would have included notes made during Dr B…'s time in the practice. I agree with Mr Fletcher in this.
4. Mr Fletcher further submitted that the Tribunal, when faced with conflicting evidence, was entitled to prefer one view to the other providing it gave reasons for its preference. It was obvious that the Tribunal accepted the GP factual report as representative of the true fact situation at the time of the disallowance. In explaining its preference the Tribunal referred to x-ray results in 2000 and 27 January 2001, to a report of an orthopaedic surgeon and to evidence from the claimant with regard to various aspects of daily living. He submitted that in the circumstances of this particular case this satisfactorily explained the Tribunal's assessment of the evidence and that overall the reasons given for the decision were adequate.
5. Mr Fletcher further requested that if I did not accept his submission and set the decision aside I should remit the matter for rehearing by a differently constituted Tribunal and seek an independent medical practitioner's examination. This was based on his concerns as to the origin of the letter on Dr G…'s headed paper dated 4 July 2002.
6. Further observations were made on the matter by the claimant's representative, Miss Loughrey the Law Centre (Northern Ireland), by letter dated 30 January 2003. Miss Loughrey submitted that the Tribunal's reasons did not adequately explain why, despite the claimant's concerns, it adopted the General Practitioner factual report dated 25 April 2001. Miss Loughrey also submitted that the Tribunal had not explained how it weighed the General Practitioner's factual report of 25 April 2001 against the claimant's own assessment of her needs and her General Practitioner's letter dated 3 September 2001. She submitted further that the Tribunal's decision was silent as to how it dealt with the impact of exacerbations of her condition, dizziness and falls on her care and mobility needs and as to the factors which it considered when concluding that the higher rate of the mobility component was not payable. Miss Loughrey submitted that Dr G…'s report was inconclusive and that Dr G… was unable to provide a true assessment of the claimant's needs.
7. As regards the origin of the letter of 4 July 2002 from Dr G…, Miss Loughrey submitted that this letter was in fact drafted by Dr G… but she did accept that the letter was not relevant to the period in issue.
8. I am of the view that the Tribunal was quite entitled to rely, as it obviously did, on Dr G…'s factual report. I do not accept that Dr G… was not in a position to make an assessment of the claimant's needs. Any doctor giving a report in the circumstances does not have to have any prior personal knowledge of the patient. Consultants prepare reports for court cases without such knowledge and medical practitioners preparing reports for claims for state benefit are equally not required to have any prior personal knowledge of the patient.
9. I equally consider that there is little that is inconclusive in Dr G…'s report. He mentions, quite correctly, that formal testing was not carried out. It appears quite clear to me as I have indicated above that Dr. G… did consult the medical records. He has expressed clear opinions on the claimant's difficulties and on the basis of them I do consider that the Tribunal was entitled to reach the decision which it did.
10. However, the claimant did make very considerable point of her concerns that Dr G… did not know her as a long standing patient. She raised this in a letter received in the Appeals Service on 27 September 2001 and raised it again at hearing. There is also, at Tab 7 of the papers, a further letter dated 3 September 2001 from Dr G… relating specifically to the claimant's difficulties in lifting saucepans from a cooker. Amongst the papers is a letter dated 22.1.02 from Dr. G… indicating help required by the claimant. It is not clear from this letter whether or not the statement as to help required is based on information given by the claimant or on examination findings or both. Nor is it clear when these needs allegedly arose.
11. I am of the view, on balance, that the reasons for the decision were not quite adequate to explain the decision to the claimant. Some reference should have been made to the claimant's contentions about Dr G…'s report. I am of the view that the Tribunal was quite entitled to rely on that report. It appears to have indicated quite clearly why it was so doing in that the x-rays in 2000 and the report of Mr A…, orthopaedic surgeon on 28 January 2002 appeared to be supportive of what the General Practitioner was stating. However, the Tribunal has not dealt with the claimant's concerns about the report. To give a hypothetical example, had the Tribunal stated that it considered the claimant's own account of her limitations unreliable, that later reports were influenced by this account and that it therefore preferred to put weight on the report prepared from the records, that would have been sufficient. I am not stating that this was necessarily the Tribunal's view. I am simply stating that the Tribunal should have offered some further explanation as to its reasoning in relation to the reliance on the factual report from the General Practitioner and the rejection of the later evidence. This was a fundamental issue in the claimant's appeal and it was not adequately dealt with.

I set the Tribunal's decision aside for that reason. I remit the matter to a differently constituted Tribunal for rehearing and redetermination. I direct that Tribunal to address the claimant's grounds of appeal. I direct the legally qualified panel member of that Tribunal to give consideration to obtaining an independent medical report on the claimant's condition. The claimant has given evidence of deterioration since 5 May 2001, the date of decision under appeal. The new Tribunal must bear in mind the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 which prohibit it from taking into consideration circumstances not obtaining at the date of the decision under appeal.

(Signed): M F BROWN

COMMISSIONER

(Dated): 12 MARCH 2003