Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C9/03-04(DLA) (26 June 2003)

 


Decision No: C9/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Application for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 2 September 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against a Tribunal decision dated 2 September 2002. The Tribunal had allowed the claimant's appeal against a Departmental decision which had disallowed the care and mobility components of Disability Living Allowance (DLA) from 1 February 2002. The Tribunal decided that the claimant was entitled to the low rate of the mobility component of DLA from 1 February 2002 to 31 January 2004 and to the low rate of the care component of DLA from 1 February 2002 to 31 January 2004. The claimant's grounds of appeal were contained in an OSSC1 form received in the Commissioner's office on 5 December 2002 and were prepared by Mr McVeigh of the Citizens Advice Bureaux who represented the claimant in the appeal to me. Observations on the application were made by letter dated 28 February 2003 from Mrs Gunning of the Decision Making and Appeals Unit of the Department. Further comment on Mrs Gunning's observations were made by Mr McVeigh by letter dated 3 April 2003.
2. I grant leave and with the consent of both representatives treat the application as an appeal and proceed to determine any question arising thereon as though it arose on appeal. I consider that I can properly decide this appeal without a hearing. My decision is that the appeal is dismissed.
3. The grounds for appeal were as follows: -

(i) The Tribunal had erred in law by misinterpreting the claimant's evidence and subsequently rejecting the evidence from her General Practitioner on the basis of this. In support of that argument Mr McVeigh referred to the Tribunal's rejection of the evidence of the claimant's General Practitioner given in his letter of 29 August 2002 and to evidence which the claimant had given at the hearing in relation to her walking and exercise tolerance.

(ii) That the Tribunal had given inadequate reasons for its decision in that it had failed to give adequate reasons for refusing to award the middle rate of the care component. In support of this Mr McVeigh submitted that the claimant's evidence to the Tribunal at the hearing would support an award.

4. Mrs Gunning opposed the appeal. She submitted that the Tribunal had had to judge whether by normal standards the claimant was unable or virtually unable to walk. In this connection Mrs Gunning referred to evidence from the claimant's General Practitioner in a letter dated 16 January 2002 where the General Practitioner indicated variable walking ability. Mrs Gunning submitted that both this letter and the letter dated 29 August 2002 had been written by the General Practitioner for the purposes of the appeal and she submitted that it was likely that references to exercise tolerance were based on information supplied by the claimant. She submitted that the Tribunal had the benefit of seeing the claimant and hearing her evidence to assess her credibility and submitted that the statement in the reasons for the decision: -

"Categorically panel do not accept that, in spite of what [Dr H...] wrote on 29 August 2002, that [the claimant's] exercise tolerance is less than 25 yards"

was an implicit indication that the Tribunal considered the claimant to be overstating her case both to the GP and to the Tribunal. The references to the claimant's ability to walk for 5-10 minutes, to the family holiday in Westport and to shopping trips to Safeway with her husband were merely illustrations of why the Tribunal found this to be the case. Mrs Gunning therefore submitted that the Tribunal did not misinterpret the evidence but rather rejected elements of that evidence as being overstated. She submitted that the Tribunal was entitled so to do.

5. As regards the reasoning in relation to the care component, Mrs Gunning submitted that the Tribunal had had the benefit of seeing the claimant and hearing her evidence. She submitted that the reasons clearly indicated that while the Tribunal accepted that the claimant required some help with personal care, on the basis of her oral evidence to the Tribunal, an award at the middle rate was not appropriate and there was therefore no merit in this point.
6. In his letter of 3 April 2003 Mr McVeigh continued to rely on the initial grounds of appeal and referred to decision CIB/14442/1996, a decision of Mr Commissioner Howell QC in Great Britain and in particular to the following passage from that decision where the Commissioner commented on the manner in which the Tribunal in that case dealt with the evidence of a General Practitioner: -

"The GP is a professional person, and as the claimant's husband pointed out nobody was forcing him to give one answer rather than the other. If he had thought that the question he was being asked gave an exaggerated description of the claimant's true level of disability he could easily have said so".

Mr McVeigh submitted further that the Department had failed to address the points raised in relation to the Tribunal's reasons for disallowing the mobility component and in particular to its using a test which he described as the 'fit lady' test.

7. I do not consider that the Tribunal's reasoning in relation to the care component was inadequate. It clearly explains the decision in relation to that component. It is quite apparent from the claimant's own oral evidence to the Tribunal that she did not need or assert that she needed continual care or supervision throughout the day. Her oral evidence clearly indicates that the claimant's main problems were stated to be showering and bathing, that she sometimes needed a "pull" out of bed, that she could toilet herself and dress, wearing easy to put on clothes, that she did not use stairs during the day, that she usually looked after her own medication, that she could drive a car, that her only night needs were assistance at times to turn in bed.
8. I do not consider that the Tribunal rejected the claimant's evidence at hearing as regards the care component. It appeared to accept her evidence at hearing in relation to the care component but to consider that that evidence did not satisfy any of the conditions for the middle rate of the care component. On the evidence that was given at hearing by the claimant I consider that the Tribunal was quite entitled to the conclusion which it reached, that there was entitlement only to the low rate of the care component and I consider that it clearly explained its view that the evidence given to it did not amount to evidence of frequent attention throughout the day. I consider there was no inadequacy in relation to the reasons for the care component and I reject the second ground of appeal.
9. As regards the first ground, the Tribunal's reasoning with relation to the mobility component is as follows: -

"Low rate mobility confirmed.

We accept appellant takes panic attacks and we confirm her need to be accompanied outdoors over unfamiliar routes. We confirm appellant suffers from low mood, possibly reactive depression due to chronic fatigue syndrome.

Categorically panel do not accept that, in spite of what [Dr H...] wrote on 29.8.2002, that [the claimant's] exercise tolerance is less than 25 yards. A lady who can by her own admission go for a gentle 5 minute walk before needing to rest is capable of walking a lot further than 25 yards. A fit lady could maybe take 300 steps in a period of 5 minutes (300 seconds) we accept [the claimant] suffers from fatigue, so we feel her exercise tolerance may be just ? that of a fit person, and feel appellant should be able to walk at least 100 yards at a slow pace in 5 minutes.

Appellant was able to holiday this summer with family in Westport and can walk round Safeway with her husband.

We feel that appellant cannot be considered as unable or virtually unable to walk.

Award is for the period of 2 years – not open-ended. This is so, that at renewal time in 2004, if [the claimant] is still suffering from chronic fatigue syndrome, that an Examining Medical Practitioner could call and examine appellant to determine whether or not there has been an improvement in her condition."

10. The evidence given to the Tribunal with relation to the mobility component by the claimant herself included a DLA claim form in which the claimant was asked roughly how far she could walk before she felt severe discomfort. Her reply was as follows: -

"100-200 metres. This would vary according to how I am feeling. Sometimes I am unable to walk and other times I would be able to walk 100-200 metres."

The next section asked the claimant to state on average how long it took to walk this far and she stated approximately 5-10 minutes. The next section asked her how many days of the week she had this amount of difficulty walking and she said 4-5 days per week.

11. At hearing with regard to the mobility component the claimant stated that she would sometimes go out with her husband to shop, that she could go to the Safeway with him but sometimes wouldn't be able to go. She stated that she held on to the trolley and that she occasionally went to church, her husband took her in the car. She stated that she rarely went out with her sister just the odd outing. She was asked if she did any gentle walking for exercise and replied that on a good day she could walk for 5 to 10 minutes then turn and come back home. She was asked why she had to stop walking and she stated that she suffered joint and muscle pain and felt weak. She stated that she used to be able to walk the dog but not now and stated that her condition varied from week to week. She was asked how she was on that day and she stated "not bad". The claimant also stated that in the last 4-6 months she had had a lot of pain from her low back and her left arm had given her problems. She also stated that she had had a holiday with her husband and children in Westport in a caravan and that her husband had had to drive her from the car park to the caravan. She stated that she had been "wiped out" and exhausted at the end of the holiday but that it had made a break for the children. Her husband stated that wherever they went he brought a collapsible chair.
12. In support of her case the claimant had produced letters dated 16 January 2002 and 29 August 2002 from Dr H... (one of the practitioners in her general practice). There was also before the Tribunal a factual report from Dr McG... (the other doctor in the practice) and this report indicated that the claimant could walk 50-100 yards before severe discomfort, that she needed no supervision, that she had no difficulty that he was aware of in upper or lower limb or back function, that she could attend to her bodily functions etc. This report was dated 11 October 2001. At the hearing the claimant stated that she was not relying on this report as Dr McG... did not know her as well as Dr H... who usually saw her and Dr McG... did not know her well.
13. The two letters referred to from Dr H... indicated variable walking ability. In the first letter dated 16 January 2002 Dr H... stated (amongst other things): -

"A lot of the time she has to use a walking stick and has difficulty with steps and walking up hills. She has 3 or 4 days of exacerbation per week and, on a bad day, has an exercise tolerance of less than 25 yards."

The later letter dated 29 August 2002 stated: -

"She uses a walking stick most days and has difficulty with steps and walking up inclines, and on bad days, which are very frequent, her exercise tolerance is less than 25 yards. She would be unable to do housework and is unable to prepare meals due to her extensive joint pains, muscle pains and fatigue. She would have 3 or 4 bad days per week… Over the last few months, she has had problems with pains in her left shoulder which shows restricted movements in all directions and lumbar back ache has been severe for this length of time also, and again restricted stiff spinal movements for which she has been referred to physiotherapy."

14. Cases of this nature are difficult for Tribunals. In this case, the Tribunal has obviously taken into consideration the range of evidence which was before it. Dr H..., in his letter of 29 August 2002 was stating that on bad days, which he later described as 3-4 days per week, the claimant could walk less than 25 yards. His earlier letter of 16 January 2002 had indicated exacerbation 3 – 4 days per week and on a bad day walking ability of less than 25 yards. The claimant herself had stated at hearing that she could walk for 5-10 minutes on a good day then turn and come back home and in her claim form had indicated that on 4-5 days per week she could walk for 100-200 metres in 5-10 minutes. She had stated at hearing that in the last 4-6 months (which post dates the decision under appeal and which worsening the Tribunal could not therefore take into consideration) her condition had gotten worse.
15. The Tribunal, in these cases is faced with the difficult task of trying to ascertain what is the situation on most days of most weeks up to the date of the decision under appeal to it (in this case 21 October 2001). I consider that the Tribunal was entitled to its view that, at 21 October 2001, on most days the claimant's exercise tolerance was greater than 25 yards. It was entitled to this conclusion on the claimant's own evidence. I do not consider that the Tribunal thought the claimant was being in any way dishonest. Its reliance on her evidence would not so indicate. However, it was presented with evidence which was not completely consistent but which did indicate a varying walking ability and it had to use its own judgment as to what was the correct fact situation at the relevant time. This I consider it has done and it has explained why it has reached this view. It has relied, quite obviously, largely on the claimant's own evidence. I consider that it was entitled to do this. The GP could not be expected to observe the claimant on three to four days per week and the Tribunal had before it the claimant's own statements as to her walking ability in response to the detailed questions in the claim form and as explored further at hearing. I do not think the Tribunal misinterpreted the letter of 29 August 2002. That letter was not perhaps altogether clear as to exercise tolerance on most days, but it is certainly open to interpretation as indicating exercise tolerance of less than 25 yards on 3-4 days per week. The claimant had stated 100-200 metres on 4-5 days per week. The Tribunal was entitled to its reliance on the claimant's evidence.
16. The Tribunal was unable to take into consideration any worsening of the claimant's condition after 21 October 2001 and it does not appear to me that it did so. The reasoning could perhaps have been somewhat fuller but I do consider that it was adequate to explain the decision and that that decision was sustainable on the accepted evidence.
17. I am in agreement with Mrs Gunning that the Tribunal simply used the analogy of the fit person to explain how it fixed the relevant fact situation and I consider that there was no error in it so doing.
18. As regards the mention of the claimant's going on a caravan holiday to Westport and going round Safeway with her husband I think that these are simply illustrations of activities which she undertook. It does not appear to me that great, if any, reliance was placed on these matters as the Tribunal has quite clearly indicated that it is the claimant's own evidence of her ability to walk slowly for 5 minutes plus which was relied on. Mr McVeigh has mentioned that there were difficulties for the claimant in going on the holiday to Westport and in walking round Safeway. The Tribunal has obviously noted these as they are recorded in the evidence. However the Tribunal bearing in mind and relying on the claimant's own statement as to her walking ability has reached its conclusions on her walking ability at the relevant time. I consider that it did not err in so doing. Its approach was correct and its findings sustainable on the evidence.
19. It must be remembered that what was being considered here was the standard of virtual inability to walk. The Tribunal has obviously accepted that the claimant had considerable walking restrictions. However, virtual inability to walk is a very very severe restriction. It means almost or practically unable to walk. I consider that the Tribunal was entitled, on the evidence, to its conclusion that the claimant's walking restrictions at the time in question were not at that level.
20. I therefore dismiss the appeal.

(Signed): M F BROWN

COMMISSIONER

26 JUNE 2003