Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C11/04-05(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 20 February 2004 DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the unanimous decision of the Tribunal affirming the decision of the decision maker, to the effect that the claimant is not entitled to the care component of Disability Living Allowance from and including 22 March 2003 and is entitled only to the lower rate of mobility component of DLA from 22 March 2003 until 21 March 2004. Leave to appeal was granted by a Commissioner on 18 October 2004.

2. Having considered the circumstances of the case and any reason put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3. Mr B… MLA represents the claimant, while Miss Fleming of Decision Making Services (DMS) represents the Department.

4. The claimant made a renewal claim in respect of the period from 22 March 2003 on 16 October 2002. She indicated that she suffered from mental illness. A medical report was completed by the claimant's General Practitioner on 27 November 2002 and a further report was provided by Dr T…, Associate Specialist at H… Hospital, on 21 March 2003. On 17 February 2003 it was decided that the claimant satisfied the conditions of entitlement for the lower rate of the mobility component from 22 March 2003 until 21 March 2004. The claimant disputed this decision. On 12 September 2003 the decision of 17 March 2003 was reconsidered. However, it was not changed. The claimant then appealed on 29 October 2003. However, as the appeal letter had not been signed by the claimant, the appeal was only established as valid from 28 November 2003 when the letter was subsequently signed by the claimant.

5. On appeal the Tribunal decided that the claimant was not entitled to the care component from and including 22 March 2003 although it also held that she was entitled to the lower rate mobility component from 22 March 2003 until 21 March 2004.

6. The Tribunal gave the following composite reasons for its decision in relation to both components: -

"We have carefully considered all the evidence and submissions in this case and conclude that [the claimant] is not entitled to the Care Component of Disability Living Allowance from and including 22.03.2003 but remains entitled to the lower rate mobility component from 22.03.2003 until 21.03.2004 (inclusive).

In determining this appeal we have only taken into account the relevant circumstances applying at the date of the decision under appeal (ie the decision dated 17.02.2003).

[The claimant's] renewal claim to Disability Living Allowance in respect of the period from 22.03.2003 indicates that she suffers from mental illness. An examination of her medical notes and records reveals that she has received psychiatric treatment for several years. Dr T… Associate Specialist at H… Hospital reported to the Department on 21.01.2003 that [the claimant's] self care is good, that she has insight and awareness of danger, that her ability to get around is good, that her compliance with treatment and management is good and that she can be left unsupervised by day and by night. She informed us at hearing that she can cook albeit that her husband helps out. Nothing in the evidence or submissions at hearing causes us to disagree with the content of Dr T…' report and accordingly no rate of the Care Component is appropriate in this case.

In relation to the Mobility Component we note Dr T… comment that [the claimant] is afraid to go shopping. It does appear from the notes and records and from the oral evidence that due to her anxiety [the claimant] may sometimes struggle to "get herself out of the house" (as per the Occupational Therapist's comments in the notes and records on 16.01.2003). On balance only, therefore, we are prepared to maintain the existing award of the lower rate mobility component from 22.03.2003 until 21.03.2004 (inclusive). It is clear that [the claimant] has no physical difficulty with walking and accordingly the higher rate of the mobility component is not appropriate".

7. Leave was sought from the legally qualified member to appeal to a Commissioner but such leave was refused on 12 May 2004. Leave was then sought from a Commissioner and, as stated at paragraph 1 herein, leave was granted on 18 October 2004.

8. The claimant's grounds of appeal were as follows: -

1. [The claimant] was intimidated and felt oppressed by the fact that the Tribunal warned her that she might be liable to recoupment of benefit if the Tribunal removed her existing award (although the legally qualified member's record of proceedings has failed to note that there was such a warning).

2. The Tribunal did not appreciate the problems that [the claimant] faced in day to day life.

3. The Tribunal incorrectly referred to a Dr "T…".

4. [The claimant's] condition needs further investigation and monitoring over an extended period so that her problems can properly be appreciated.

9. The Department does not support the claimant's contentions.

10. The points raised by Mr B… on behalf of the claimant can be dealt with fairly shortly.

11. The record of proceedings does not purport to be a verbatim account of what happened at the Tribunal. However, the Tribunal was only considering the claimant's entitlement from 22 March 2003. While it is conceivably possible that the Tribunal pointed out that the Social Security Agency could recover benefit that had been paid if it was established that the claimant had misrepresented or failed to disclose a material fact, this is in fact the correct legal position. However, it is unlikely that there was any inference that the claimant might have to repay all the money she had received since in and about 1994 as it is clear that the Tribunal was only considering her entitlement from 22 March 2003. Therefore I agree with Miss Fleming that even if a warning had been made by the Tribunal about the Social Security Agency's power to recover any benefit that was incorrectly paid, this could not have had any significance in the decision-making process in this case.

12. In relation to the second ground of appeal, the Tribunal considered evidence from the claimant and from Dr T…, her hospital specialist. There is no evidence available in the papers to suggest that the medical position was misunderstood in any way. The Tribunal was entitled to rely on Dr T…' report, in assessing how the claimant's condition impacted on her mobility and care needs.

13. The reference to "Dr T…" is clearly a minor typing error and is an obvious mistake for "Dr T…". This has not led to any material confusion or error.

14. In relation to the fourth point there was clearly sufficient evidence available for the Tribunal to make a decision in this case and, in light of Dr T…' report, it is reasonable to assume that she has been appropriately investigated and monitored at H… Hospital. In my view the Tribunal was entitled to decide these issues on the evidence available and there was no reason, in law, why it ought to have adjourned the case to enable further evidence to be made available.

15. In granting leave to appeal on 18 October 2004 I gave as reasons the following: -

" It is arguable that the decision was wrong in law, because the Tribunal did not take into account Dr M…'s report (dated 11 February 1999) which reveals a long period of mental ill-health and contains the conclusion that in the doctor's opinion that the claimant "is permanently unfit for work"."

In my view these grounds raise the only possible point in favour of the claimant.

16. At an earlier stage in the proceedings the Department was asked to deal with this issue. On 8 July 2004 Miss Fleming made the following relevant submission: -

"The Commissioner has requested the Department's comments on whether the Tribunal ought to have referred to the medical report of Dr M… of 11 February 1999.

The report from Dr M… was contained in the Department's submission papers (…). It would certainly appear that this report was considered by the Tribunal as the Department's submission is listed in the record of documents considered. As there is no specific reference to the report in the record of proceedings or reasons for the decision it would appear that the Tribunal did not rely on it in reaching its decision. I would submit that there is no error in law in the Tribunal not referring to this report for a number of reasons. Firstly the report is dated 11 February 1999 which is over four years prior to the period under consideration by the Tribunal, so it is clearly not contemporaneous medical evidence. Secondly the report from Dr M… addresses [the claimant's] ability to work and not the conditions for an award of DLA, therefore there is no mention in the report of any care or mobility needs. In view of these facts I would submit that it is clear why the Tribunal would not rely on the report from Dr M… dated 11 February 1999 but would attach significant weight to the contemporaneous report from Dr T… which was specifically directed towards the criteria for DLA. Finally I would submit that although the report from Dr M… was forwarded with [the claimant's] reconsideration request it was not specifically raised by her or her representative in their grounds of appeal to the Tribunal or at the hearing of the appeal."

17. In my view Miss Fleming is substantially correct in her submissions. A previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition but, where a tribunal is not renewing a previous award, it must explain why not, unless this is obvious from its findings – see Quinn v Department for Social Development [2004] NICA 22 (reported at R3/04(DLA)). The Tribunal has made it entirely clear why it has come to the conclusion to which it came and it is not an error in law to rely heavily on Dr T…' evidence. While it might have been preferable for the Tribunal to mention Dr M…'s 1999 report, it is not an error in law not to do so, especially as it was not specifically raised by the claimant or Mr B… either in the grounds of appeal to the Tribunal or at the hearing of the appeal.

18. Kerr LCJ stated in Quinn v Department for Social Development [2004] NICA 22 at paragraph 35, in relation to a renewal application: -

"Each application must be treated anew. The reason for this is clear. The claimant for DLA must establish a level of disability at the time the application is made and for a period of six months after the benefit becomes payable. It would avail the appellant nothing to show that in November 1997 she was considered to be sufficiently disabled to be entitled to the benefit. She must show a contemporaneous disability of such severity that she was entitled to the benefit at the time of application and beyond".

19. Therefore the adjudicating authorities must treat each application for DLA anew and the claimant must establish a level of disability at the time the application is made and for the relevant period after the benefit becomes payable. The Tribunal has correctly approached this case bearing in mind these principles.

20. Accordingly I conclude that the Tribunal's decision was not erroneous in point of law and therefore dismiss the claimant's appeal.

(Signed): J A H Martin QC

Chief Commissioner



24 January 2005