Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Application No: C12/04-05(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 4 March 2004 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against the decision dated 4 March 2004 of an appeal tribunal sitting at Londonderry. That Tribunal dismissed the claimant's appeal against a decision dated 2 February 2003 which superseded a decision dated 17 June 2001 awarding the claimant the lower rate of the mobility component of Disability Living Allowance (DLA) from 17 April 2000 to 16 April 2003. The decision of 2 February 2003 removed that entitlement from and including 2 February 2003.
2. In that decision the Department stated that a relevant change of circumstances had occurred in that the claimant now suffered hip pain and facial eczema in addition to her hearing loss. The Department appears to have considered that this was a threshold for supersession and then went on to consider whether the decision awarding the benefit should be changed. It decided, relying on medical evidence that the claimant did not reasonably require guidance or supervision when walking outdoors for most of the time on unfamiliar routes and as such removed the award of lower rate of the mobility component. With relation to the care component the Department reviewed the evidence and submitted that the claimant did not satisfy the conditions for entitlement to the care component from and including 2 February 2003. The supersession was therefore of the Department's own volition.
3. The claimant appealed to the tribunal and the tribunal, in addition to the written evidence, had the oral evidence of the claimant who attended the hearing accompanied by her daughter and by her representative Mr Murphy. The Tribunal, in its reasons for the decision, recorded (inter alia), in relation to the lower rate of the mobility component, the following:-

"In relation to the low rate we are told that the daughter accompanies Appellant outdoors. She claimed to be nervous in traffic and that it is not always practical to walk 50–100 yards to a crossing. Appellant spoke about not understanding what people were saying when shopping. As stated elsewhere, shopping does not fall within the low rate mobility component criteria. We also note that letter of appeal refers to Appellant being able to lip read.

General Practitioner was of the opinion that attention and/or supervision (including reassurance, encouragement) was not required outdoors, most of the time, per January 2003 report. The medical evidence does not indicate that the Appellant is not mentally competent and aware of dangers. There is no complaint in relation to eyesight. She is not prone to fits, falls, (sic) blackouts, comas or such likes. She has had some years now to adjust to her hearing aids.

Weighing up all the evidence the Tribunal concur with the General Practitioner's opinion. We find that the appellant can reasonably take advantage of her walking facility on familiar/unfamiliar routes without guidance/supervision when outdoors, most of the time.

Department has discharged the onus of proof and we regret that it was appropriate to remove award as relevant change of circumstances, conditions of entitlement are not satisfied."

4. In its reasoning in relation to the care component, which was also referred to in the section relating to the mobility component, the tribunal recorded inter alia,

"Appellant has been wearing hearing aids for 3/4 years although she claims to have had a hearing problem since childhood.

It was not evident to the panel that Appellant was having any undue difficulty hearing us throughout the hearing. However we did not allow our own observations to prejudice Appellant. We note that General Practitioner had not recorded any communication problem."

5. In her oral evidence to the Tribunal the claimant had recorded that the hearing aids were "helpful" she also said:-

" I only go out and do a bit of shopping. I do not go out. Tend not to go out because of hearing. Nervous with the traffic. Always use the zebra crossings. I use them all the time.

Shop at Wellworths – do all shopping there. Will not go to shop if daughter not there because do not understand what people are saying to me."

6. The General Practitioner in the factual report of 13 January 2003 in response to the question:-

"Does the patient experience any difficulty whilst walking on level ground with regards to their mobility"

stated:-

"No"

In response to the question:-

"Are you aware of any attention and/or supervision (which can include reassurance, encouragement or cajoling) required from another person to enable the patient to get around unfamiliar surroundings, most of the time"

the General Practitioner replied:-

"No"

7. The claimant appealed to a Commissioner against the Tribunal's decision. In the appeal she has been represented by Mr Murphy of the Citizens Advice Bureau and the Department has been represented by Mr Kirk of the Decision Making Services (DMS) I am grateful to both representatives for their assistance in this matter. The grounds of appeal were contained in an OSSC 1 Form received in the Commissioners Office on 17 May 2004 and were threefold:-

1. That the Tribunal had failed in its inquisitorial role in relation to shopping in that it was not shopping but the lack of hearing which necessitated attention to enable the claimant to communicate. The decision in the case of Secretary of State v Fairey – Halliday [1997] 1WLR (reported as R(A)2/98) was cited here though without further reference or submission based on that case.

2. That the Tribunal had failed in its inquisitorial role by not asking about the claimant's lack of social life. Decision CDLA16668/96 was cited here again without further submission based thereon.

3. That the claimant's hearing had not improved so it was unclear why she lost the award of the lower rate of the mobility component.

8. The Department initially opposed grounds 1 and 2 but considered that there was an error in relation to ground 3. However in later correspondence and after I had directed certain submissions the Department retracted its support for the appeal and opposed the appeal.
9. I begin with the first and second of the claimant's grounds. It does not appear to me that the Tribunal in any way failed in its inquisitorial role. The Tribunal obviously explored thoroughly the effects of the claimant's hearing problem. It was up to the claimant, who was represented at the appeal, to present such evidence as she wished in support of her case. A Tribunal is only obliged to explore issues not expressly raised where the issues are so apparent on the evidence that they need exploration. It does not appear to me in this case that there was any such issue. In the reasons the Tribunal has recorded:-

"It is the unanimous opinion of the Tribunal that Appellant can generally attend to her own bodily functions, including activities associated with that of hearing and taking into account reasonable aids."

10. The appellant had stated that she found her hearing aid helpful and her own General Practitioner had not recorded any communication problem. There is no doubt that if a claimant has attention needs in connection with the bodily function of hearing these can be taken into consideration. The Tribunal here did not fail so to do. Rather it found that such needs did not exist. That is obviously relevant to the question of attention in connection with normal life as indicated in Fairey and into the nature of any qualifying attention as considered in CDLA 16668/96.
11. As regards the third ground, which essentially is based on whether or not there were grounds to supersede the original awarding decision, the Department has submitted that such grounds did exist. It refers, in its submission of 15 October 2004 to the evidence that the claimant found her hearing aids helpful, that she had had some years to adjust to the hearing aids, that the Tribunal did not observe any undue difficulty in her ability to understand at hearing, that her General Practitioner had not recorded any communication problem, that whilst she was nervous in traffic she would always use zebra crossings. The Department submits that, based on this evidence, the Tribunal has accepted that the claimant's hearing has improved and that she can reasonably take advantage of her walking facility on familiar/unfamiliar routes without guidance/supervision when outdoors most of the time. I do not agree. It does not appear to me that the Tribunal found that the claimant's hearing had improved. It has not indicated that it so found. Rather, as is apparent from the passage extracted above, it has found that the claimant is mentally competent and aware of dangers, is not prone to falls, blackouts etc, has no eyesight complaints and has had some years to get used to her hearing aids. From this it has concluded that the claimant could reasonably take advantage of her walking faculty on familiar and unfamiliar routes without guidance or supervision when outdoors, most of the time. The relevant change identified is not related to the claimant's hearing but is that she has now had some years to adjust to her hearing aids and can walk outdoors without the relevant extent of guidance or supervision. In light of those findings (which are sustainable on the evidence) it appears to me that the Tribunal was entitled to its conclusion that the mobility needs had lessened.
12. It is important to emphasise, as the Northern Ireland Court of Appeal did in the case of Quinn v the Department for Social Development [2004] NICA 22(29 June 2004) that the Tribunal is considering the level of care and mobility needs coming from the disablements. At paragraph 38 Kerr LCJ, (delivering the judgement of the court) stated:

"Mr Larkin's second argument on the giving of reasons was that the Tribunal had failed to explain why it did not consider the effects of the mental condition to be such as to permit the appellant to qualify for the benefit. Again this argument misses the point that the Tribunal was concerned with the actual level of disability of the appellant rather than an examination of its causes. In other words, it was assessing whether the appellant was as disabled as she claimed she was, not what might have caused her disability. In our judgment it was not necessary for the Tribunal to explain why it did not consider that the effects of the mental condition would 'permit the appellant to qualify for the benefit' because it had concluded that the level of disability was not sufficiently great to make her eligible."

13. The Court was obviously making a clear distinction between the underlying cause of the disability and its level. The question there, as here, was whether the level of disability was such as to entitle the relevant claimant to the benefit. I do not consider that the Tribunal made any finding as to an improvement in hearing, merely that the attention and supervision needs arising from the claimant's condition had lessened. The lessening of those needs is, in my view, a relevant change of circumstances. It is on the basis of the needs that Disability Living Allowance is awarded and therefore if those needs lessen that is a relevant change of circumstances, which can lead to a supersession of an awarding decision. It is not an unknown situation for a person suffering from a disability to learn techniques, which enable that person to cope better with that disability and thus become more independent. Nor is it uncommon for such a person, as the Tribunal has found to be the case here, to become more independent as that person gets used to an aid, which has been supplied.
14. Mr Kerr raised an issue in relation to the Department's decision. This relates to the fact that the Department apparently superseded a decision adversely to the claimant on the basis that her condition had deteriorated in that the Department found her to have additional health problems. A Tribunal of Commissioners in Great Britain in the case of CIB/4751/2002 and others stated at paragraph 10((4).

"It was common ground between Mr Drabble and Miss Lieven - and in our judgment rightly so – that the decision of the Court of Appeal in Wood v The Secretary of State for Work and Pensions [2003] EWCA civ53 (reported as R(DLA) 1/03) is authority for the propositions that:

(a) there can be no supersession under Section 10 unless one of the grounds for supersession specified in Regulation 6 is actually found to exist, and

(b) the ground which is found to exist must form the basis of the supersession in the sense that the original decision can only be altered in a way which follows from that ground."

I am in agreement with the decision in Wood and that of the Tribunal of Commissioners as regards those two propositions. As I have indicated earlier in this case I do consider that the Tribunal correctly concluded that there had been a relevant change of circumstances in that the claimant's mobility needs had lessened due to her having grown used to the hearing aids which she found helpful. That ground could form the basis of supersession to remove the award of the lower rate of the mobility component. However that was not the format of the Department's decision. The Department, contrary to the decision in Wood found a relevant change of circumstances in that there had been some worsening of the claimant's physical state and removed the award of the mobility component for that reason. The Department had not indicated any relevant change of circumstances relating to the mobility component as being a ground for superseding the said decision. Its decision was erroneous in that respect.

15. The Tribunal of Commissioners at paragraphs 81 and 82 of its decision dealt with the question of whether the tribunal should, where it upheld the substance of a Secretary of State's decision in the sense that it held that the benefit was correctly altered from the date specified, in its decision notice seek to perfect or reformulate a decision which was incomplete in some respect. The Tribunal of Commissioners said at paragraph 82

"In our judgement, in a decision notice the appeal tribunal should only be obliged to reformulate such a decision of the Secretary of State if either (i) the decision as expressed is wrong in some material respect (e.g. states an incorrect ground for supersession) or (ii) there is likely to be some particular practical benefit to the claimant or to the adjudication process in future in reformulating the decision."

16. Based on CIB/4751/2002 and others, Mr Kirk has submitted that it will not always be fatal to a tribunal decision if a tribunal fails to reformulate a decision. Much will depend on the circumstances of each case. I agree with him in that respect. He has submitted further that a tribunal is only obliged to reformulate a decision if either the decision as expressed is wrong in some material respect or there is likely to be some particular practical benefit to the claimant or to the adjudication process in future in reformulating the decision. I again agree with his submission in that respect. He submits, again I consider correctly, that the original decision was wrong in relation to the grounds for supersession in that the grounds given could not have led to an adverse supersession.
17. I then ask myself whether the Tribunal reformulated that decision. Mr Kirk submits that it did not but that its failure so to do was not fatal to the decision. He submits that it would be clear to a reasonable person reading the Tribunal's decision how that decision was reached and to what the Tribunal had addressed its mind. In support of his submission he cites the case of R v Immigration Appeal Tribunal ex-parte Khan [1983] QB790 where, in relation to the statutory duty of an Immigration Appeal Tribunal to give reasons, it was said at page 794:-

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind.

In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not.

Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases (sic) it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

18. I agree with Mr Kirk that it would be clear to a reasonable person reading the decision of the instant Tribunal how that decision was reached and to what the Tribunal had addressed its mind. However, I consider also that the Tribunal did effectively reformulate the Department's decision. It did not adopt the Department's grounds for supersession but clearly made its own findings in relation to the hearing aid and whether or not the mobility needs had altered. There is a reference to the Department having discharged the onus of proof but this appears to me to relate to the evidence produced being such as to discharge the burden of proving that the claimant now had reduced mobility needs (which burden was on the Department). I therefore do not consider that there was a failure to reformulate the decision. However I agree with Mr Kirk that it was clear to any reasonable person reading the decision how it was reached and to what the Tribunal had addressed its mind and that the Tribunal had addressed its mind to the correct issues.
19. I consider that there was no error either in relation to the grounds for supersession or to the clarity of the Tribunal's decision.
20. One further matter that must be dealt with. This is in relation to the General Practitioner's evidence contained in the report of 13 January 2003. I have set out above the response by the General Practitioner to the various questions. The Tribunal has recorded:-

"General Practitioner was of the opinion that attention and/or supervision (including reassurance, encouragement) was not required outdoors, most of the time, per January 2003 report. The medical evidence does not indicate that the Appellant is not mentally competent and aware of dangers. There is no complaint in relation to eyesight. She is not prone to fits, falls, (sic) blackouts, comas or such likes. She has had some years now to adjust to her hearing aids.

Weighing up all the evidence the Tribunal concur with the General Practitioner's opinion. We find that the Appellant can reasonably take advantage of her walking facility on familiar/unfamiliar routes without guidance/supervision when outdoors, most of the time."

21. Mr Kirk submits that the General Practitioner did not actually express an opinion in positive terms as to any such attention needs but has specifically stated that he was not aware of the claimant requiring the above. I agree with Mr Kirk in that respect. The Tribunal also refers to a later letter from the General Practitioner which again indicates that the General Practitioner has nothing recorded as to any attention or supervision required. The Tribunal appears to have considered that the report of 13 January 2003 expresses an opinion that attention and/or supervision was not required. The Tribunal concurs with that opinion and specifically so records. However, the Tribunal also makes a specific finding that the appellant can reasonably take advantage of her walking "facility" (this appears to be a misprint for "faculty") on familiar/unfamiliar routes without guidance/supervision when outdoors most of the time. It also records that the medical evidence does not indicate that the appellant is not medically competent and aware of dangers, that there is no complaint in relation to her eyesight and she is not prone to falls, fits, blackouts etc and that she has had some years to adjust to her hearing aids. While I do consider that the General Practitioner's report of January 2003 falls somewhat short of expressing a positive opinion and that the Tribunal's reasoning is therefore somewhat inaccurate in that respect, there was, nevertheless adequate evidence to indicate that the appellant did not require the relevant attention and/or supervision and the Tribunal has obviously relied substantially upon that. The claimant had years to get used to her aids, she did go out and used pedestrian crossings and her GP had no record of mobility problems, she was not prone to falls etc and was aware of dangers. I therefore do not consider that it erred in relation to its reliance on the evidence. The decision was sustainable on the evidence and, while the General Practitioner report of January 2003 was somewhat short of a positive opinion, it was nevertheless supportive of the other evidence. All in all the decision was sustainable on the evidence before the Tribunal.
22. As regards the care component, the Tribunal's conclusions do appear to me to be sustainable on the evidence. The reasoning in relation to same is clear and I can ascertain no error whether as alleged by the claimant or otherwise.
23. I therefore dismiss the appeal.

(Signed): M F Brown

Commissioner

14 January 2005