Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C3/03-04(DLA) (13 August 2003)

 


Decision No: C3/03-04(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 6 August 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 6 August 2002 of an Appeal Tribunal sitting at Londonderry. That Tribunal had allowed the claimant's appeal in relation to Disability Living Allowance. It had awarded her the lower rate of the mobility component for the period 22 February 2001 to 21 February 2003 (both dates inclusive). The claimant appealed to me on an OSSC1 form received in the Commissioner's office on 7 January 2003. The grounds of appeal were: -

"The facts as established are such that no person acting judicially or properly instructed as to the relevant law could have come to the decision in question."

2. No detail was given as to what facts were referred to nor what section of the law was referred to. It is worthy of note that at the Tribunal hearing and in the initial application to me the claimant was represented by a solicitor, Mr Stewart. In the course of the proceedings before me I was informed that Mr Stewart was no longer in practice and Mr Murphy of the Citizens Advice Bureau became the claimant's representative. I granted leave as in my view an arguable issue arose as to whether the Tribunal had adequately explained its assessment of the claimant's evidence.
3. Observations on the appeal were made by Miss Fleming of the Decision Making and Appeals Unit, representing the Department. I am grateful to Miss Fleming and to Mr Murphy for their assistance. Miss Fleming opposed the appeal. Further comment was made on the claimant's behalf by letter dated 17 June 2003 from Mr Murphy. At this stage I would note that the grounds of appeal appear to relate to the care component only and that I can ascertain no arguable error of law in the decision relating to the mobility component.
4. In her letter of 16 May 2003 Miss Fleming submitted that there was no indication that any care or mobility needs existed due to the claimant's physical condition. The Tribunal therefore only considered entitlement to DLA on the basis of the claimant's mental disability and she submitted that this was the correct approach in view of the evidence. In relation to the care component Miss Fleming submitted that at the Tribunal hearing the solicitor had submitted that the claimant needed supervision with medication and encouragement to get out of bed and wash, etc. Miss Fleming submitted that it was apparent from the record of proceedings that this submission was considered. The adequacy of the Tribunal's reasons for its decision had to be judged with this in mind. The Tribunal's reasons indicated that it had considered the claim in light of all the available medical evidence. That evidence included a factual report from the claimant's GP, Dr F, a letter from Dr F (which formed the basis of the appeal and which confirmed that the information in the factual report still applied but which did not identify any specific care or supervisory needs), a psychiatric report from Dr C dated 3 April 2002, a further GP letter dated 5 August 2002 indicating that the claimant might develop severe anxiety symptoms or a panic attack at the Tribunal and the claimant's GP notes and records. The Tribunal, in its reasons, referred specifically to Dr F's factual report and to the fact that the claimant was no longer attending the Community Mental Health Team. While Dr F's comments were somewhat qualified in that he stated that the claimant would probably not self-neglect if she lived alone it was important that that report be read in conjunction with the GP records.
5. Miss Fleming further submitted that while the psychiatric report from Dr C indicated that one of the claimant's primary difficulties was her lack of motivation and general interest, the only encouragement in connection with bodily functions mentioned in the report was in relation to medication. Help with childcare and domestic tasks could not be considered for the purposes of entitlement to the care component.
6. Miss Fleming submitted that in assessing the evidence in relation to preparing a cooked main meal the Tribunal found the claimant capable of this task. Although the claimant claimed she didn't feel like cooking and couldn't plan a meal (this was in her claim form) the factual report indicated above stated that the claimant was aware of common dangers indoors and that she exhibited no dangerous tendencies or disturbed behaviour. While the claimant informed Dr C that her mother encouraged her with medication and assisted with childcare and domestic tasks no specific difficulties with cooking were described. Miss Fleming submitted that given the medical evidence it was reasonable for the Tribunal to decide as it did.
7. Miss Fleming further submitted that, although the self-assessment claim form indicated that the claimant required supervision all day this was not supported by the medical evidence. Dr F indicated that the claimant could be safely left unsupervised, there was no history of falls or dizzy spells, she was aware of common dangers, she exhibited no dangerous tendencies or disturbed behaviour and there was no history of self-harm. Dr C noted that the claimant had occasional thoughts of self-harm but no definite plans to carry out such an act and episodes of dizziness but no history of falls or injuries.
8. Miss Fleming submitted that the Tribunal accepted that the claimant would require help with her medication but that this would not amount to attention for a significant portion of the day or frequent attention throughout the day. She submitted therefore that the Tribunal's conclusions that the claimant was not subject to self-neglect and did not have sufficient attention needs to fulfil the criteria for an award of the care component were sustainable on the evidence. She submitted further that it was implicit from the reasons for the decision that the Tribunal rejected the claimant's evidence on the basis that it was not supported by the body of medical evidence. Miss Fleming therefore submitted that the reasons given were an adequate indication of the Tribunal's assessment of the evidence. She opposed the appeal.
9. By letter dated 17 June 2003 Mr Murphy made further comment. He agreed with the Department that help with child care and domestic tasks could not be considered for purposes of entitlement to the care component and assumed that this was a reference to Dr C's report. He contended that if that report was taken as a whole the routine domestic tasks would include making meals. He noted that, giving his opinion (the references to routine domestic tasks, etc being in the history), Dr C stated: -

"One of the primary difficulties is her lack of motivation and general interest".

Mr Murphy submitted that this statement seemed to refer to the claimant's care needs as Dr C went on to express his concern regarding her phobic avoidance of going out on her own (in his view this was obviously a reference to the mobility component, the low rate of which did not seem to be an issue here). He submitted that, reading Dr C's report as a whole, Dr C was of the view that the claimant suffered from a serious depressive illness. Mr Murphy contended that the Tribunal failed in its inquisitorial role by not investigating the matter further.

10. He further submitted that as Dr C had indicated that the claimant had occasional thoughts of self-harm the Tribunal failed in its inquisitorial duty to establish what dangers she was to herself and how often. He submitted that it was possible that a person could be too depressed to consider self-harm. Mr Murphy further submitted that the presenting officer for the Department seemed to have some doubts at the hearing concerning Dr C's report to the extent that he questioned whether the Tribunal could make a decision based on it.




11. As regards the fact that the claimant was discharged by the Community Mental Health Team in February 2001 the Tribunal had, in Mr Murphy's submission, put a lot of reliance on that fact. Dr C had indicated that he was concerned about the claimant's level of withdrawal and there had been a referral back to the team in May 2001. He submitted that this level of withdrawal could include missing appointments.
12. The Tribunal's record of proceedings is before me. The Tribunal sat on two occasions. On the first occasion (31 January 2002), the Tribunal adjourned to have Dr C prepare a report. The terms of the adjournment were as follows: -

"The tribunal wish to know the nature and extent of the appellant's psychiatric condition, its likely prognosis and whether any care needs arise from the condition or supervision needs".

When the Tribunal resumed it had before it Dr C's report. Unfortunately that report did not completely fulfil the terms of the adjournment. However, the Tribunal decided to proceed. That was a matter for the Tribunal. The claimant was professionally represented at both hearings and there was no application made for an adjournment. It is correct that the Department's representative queried whether Dr C's report answered the terms of the adjournment and he questioned whether the Tribunal could make a decision on it. The Tribunal obviously considered that it could and it is important in this respect to note that this is a matter for the Tribunal. It is for the Tribunal and not for any doctor to determine whether there is a mental disability and the care and supervision needs coming there from.

13. I proceed on the basis, which appears to me to be correct, that there was no issue of needs coming from the claimant's physical condition. The Tribunal's record of proceedings indicates that the claimant's mother stated that the claimant had a breakdown that morning and she did not know whether to bring her in. The claimant's solicitor stated that the case was a difficult case based on the claimant's medical condition. He stated:-

"Difficult case based on medical condition. Seems to be the mental aspect of venturing out. Need guidance or supervision. Is physically capable of walking. Things mentioned in application. Reference how continue centre guidance. There is a degree of agoraphobia."

The claimant's mother then intervened stating that the claimant: -

"Would do anything she goes to pieces. Have to hook onto her. She is disinterested."




14. The solicitor then stated: -

"Care – medication needs to be supervised to take it. Encourages her to get out of bed, wash etcetera."

The claimant's mother then stated that there was as yet nothing further as regards the Community Mental Health Team (this was in response to a Departmental question). The mother then said that the claimant did not sleep at night and did not eat. She broke out in a rash caused by stress. She did not have good nights.

15. In its reasons for decision the Tribunal stated as regards the care component: -

"The appellant's claim is based on her psychiatric conditions. She has suffered depression since childbirth. She has no definite plans for self-harm and is assisted with her medication by her mother. She has dizziness but there is no record of falls relating to it. She is mentally competent, aware of danger and not subject to self-neglect or self-harm. She was discharged by the Community Mental Health Team in February 2001. She was referred back but did not attend in May 2001. She continues on anti-depressant medication. Taking into account all the available medical evidence including the General Practitioner factual report of 16/04/01 the tribunal found that the appellant does not require help with her bodily functions except for her medication. She does not therefore require help for a significant portion of the day nor does she require help frequently throughout the day. Nor does she require any attention in relation to bodily functions at night. She does not require continual supervision by day nor does she require someone to be awake at night for a prolonged period or at frequent intervals to watch over her.

She is capable of preparation of a cooked main meal and would have no physical restriction in respect of this. We did not accept that the evidence established that she would be unable to do this from a mental health point of view.

The tribunal therefore found that none of the criteria for an award of the care component were satisfied on the evidence available to us."

16. As I have mentioned above there appears to be no real issue in relation to the mobility component and I do consider that the Tribunal was completely justified in its decision in relation thereto. I would also mention that the burden of proof of entitlement to any component is on the claimant. The claimant must show that she satisfies the conditions of entitlement. If the Tribunal, taking an overall view of the accepted evidence does not consider that this burden has been discharged it must refuse the award in relation to that component. The Tribunal is under no obligation to investigate matters further unless an issue is so clearly raised either expressly or implicitly that it must do so. In this case, the claimant was professionally represented. As has been said on many occasions a Tribunal is entitled to expect the representative and in particular one who is professionally qualified, to raise any relevant issues. I do not consider that the Tribunal ignored any relevant issues or failed to adequately explore such issues. The Tribunal's duty in this matter is limited by Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998. The Tribunal, by that subsection is relieved from the obligation of considering "any issue that is not raised by the appeal". I consider that the Tribunal did consider every issue which was raised by the appeal. It is not for the Tribunal to go trawling searching for additional evidence. The onus is on the claimant, firstly to present evidence and secondly to make her case in relation thereto. She may be assisted to do so by a Tribunal but the onus remains firmly on her. The Tribunal does have an inquisitorial role but that role is limited to dealing with issues which are expressly raised or which are so clearly apparent from the evidence that they have to be explored. The exploration of these issues is at a level of what is reasonable. The claimant had the opportunity, at her appeal hearing, to present her evidence and to make such points as she wished. I do not consider that there was a breach of the Tribunal's inquisitorial role in this case.
17. I also consider that the Tribunal was entitled to proceed on foot of the evidence which it had before it. It was for the Tribunal, not any medical practitioner to determine the level of care needs. While some expression of medical opinion thereon from Dr C might have been welcome, it was not essential and the Tribunal did not err in proceeding without it.
18. As regards Dr C's report I do consider that the Tribunal accepted that the claimant suffered from a depressive illness. It awarded her the lower rate of the mobility component on foot thereof. It also received evidence in relation to the care and mobility needs arising from that illness. The claimant was given an ample opportunity to present her evidence as to her care needs and the Tribunal considered this evidence. I fail to see in what way the Tribunal erred in not investigating this matter further.
19. With regard to the comments as to self-harm I do not consider that there was any failure of the inquisitorial role here. Dr C was indicating that while the claimant might occasionally think of self-harm she had no plans to carry out such an act. Her own General Practitioner had also expressed the view that she was not likely to self-neglect and that she did not exhibit dangerous tendencies or disturbed behaviour and that she was aware of danger and that there was no history of self-harm. That being so the Tribunal, it appears to me, was quite entitled to its conclusion.
20. As regards the referral by the Tribunal to the Community Mental Health Team having discharged the claimant and to her not having attended subsequent appointments, there is no question but that these are accurate findings. The Tribunal has drawn no express conclusion there from and I find it difficult to ascertain what is the implied conclusion if any. However it does not appear that the Tribunal put any particular reliance on the finding in relation to the Community Mental Health Team. It does appear to have relied mainly on the medical evidence including the General Practitioner's factual report of 15 April 2001. On the basis of that report the Tribunal was, in my view, entitled to reach the conclusion which it did.
21. I did have some concerns, as indicated in my reasons for granting leave, as to the manner in which the Tribunal dealt with the claimant's evidence. However, having examined the matter in more detail it does appear to me to be clear that the Tribunal relied on the overall evidence including the evidence of Dr C. It has expressed no view as to the reliability of the claimant as a witness and I do not think that it needed to do so. The claimant herself had relied in her appeal letter on her GP's assessment of her condition. The Tribunal has taken that on board and has accepted it and its conclusions as to the claimant's needs are quite clear and quite sustainable on that assessment. I am therefore of the view that the decision is sustainable on the accepted evidence and that the assessment of the evidence is clearly explained. The GP states in his letter of 11 June 2001, which the claimant appended to her appeal letter, that the information given previously (this appears to refer to the factual report dated 16 April 2001) still applies. The Tribunal's conclusions are based quite clearly on that factual report and I consider that they are sustainable on the foot thereof. It must be remembered that the claimant herself relied on that report. The reasons are adequate to explain the assessment of evidence.
22. On foot of the evidence before it the Tribunal was entitled to its conclusions, did not ignore any issues expressly raised or clearly apparent and clearly explained its decision. I therefore dismiss the appeal.

(signed): M F Brown

Commissioner

13 August 2003