Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2005] NISSCSC C34_04_05(DLA) (27 June 2005)

Decision No: C34/04-05(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 28 July 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 28 July 2004 of an appeal tribunal sitting at Belfast. My decision is given in the final paragraph. The Tribunal dismissed the claimant's appeal against a decision of the Department that he was not entitled to disability living allowance (DLA) from and including 19 August 2003. This was on foot of a fresh claim and the claimant therefore had to satisfy the Tribunal on the balance of probabilities that he fulfilled the conditions for entitlement to some rate of DLA.
2. The Tribunal, as is apparent from the reasons for its decision, preferred to rely on the general practitioner (GP) records and report to relying on the claimant's evidence which it did not consider to be altogether reliable. It is also apparent that in connection with dizziness and falls from which the claimant claimed to suffer the Tribunal explored why this had not been mentioned in the GP's records. The claimant informed the Tribunal that he had reported the matter to his GP but the GP had simply said that it was due to the medication which the claimant took for his heart condition. It is also worthy of note that at no stage had there been any other indication that the GP records were other than accurate or complete.
3. The claimant appealed to me, his grounds of appeal being four fold:-

1. That an unreasonable burden of proof was put on him and when his GP had no record on certain matters this was used against him.

2. That the Tribunal should not have used its knowledge of the GP as a reason for accepting his records as accurate (the Tribunal had mentioned that the GP was known to them as a member of the Tribunal panel).

3. That the record of proceedings was incorrect in that the claimant had never indicated that he did not drive.

4. That the Tribunal had misread the report of a Miss M… in that the claimant had never been discharged by Miss M…. In addition as regards Miss M… the Tribunal had stated that it did not know what her qualifications were and it should not have gone ahead and made a decision without inquiring what those qualifications were if it had difficulty as regards same.

4. I granted leave on the following grounds:-

1. That an arguable issue arose as to whether the Tribunal misunderstood or ignored the claimant's oral evidence relating to the preparation and cooking of a main meal.

2. Whether the Tribunal's reading of the report of Miss M… was a reasonable one.

5. The Department made observations on the appeal by letters dated 31 December 2004 and 18 March 2005. It opposed the appeal. In its submissions, which were prepared by Mr Kirk of the Decision Making Services (DMS) branch, the Department submitted that the burden of proof was on the claimant to show that he was entitled to an award of DLA. In considering whether the conditions of entitlement were satisfied the Tribunal had considered medical evidence including GP notes and records and a GP factual report and had had the advantage of hearing oral evidence from the claimant. It was evident from the record of proceedings and from its decision that the Tribunal considered all the evidence and gave detailed reasons as to why the claimant was not entitled to DLA. Mr Kirk submitted that the burden of proof based upon the claimant was not unreasonable but was that placed upon any person making a claim to benefit.
6. As regards the assumptions made about the medical evidence and the allegation that it was unreasonable for the Tribunal not to believe the claimant Mr Kirk submitted that it was reasonable for the Tribunal to expect that if the claimant genuinely had a complaint of dizziness and falls this would have been mentioned in his medical records. In the absence of any such record it was reasonable for the Tribunal to conclude that the falls and dizziness were not a problem and to decide that it did not believe the claimant's evidence. The conclusions of the Tribunal in this respect were in part based on other evidence. The dizziness and falls had not been mentioned in the claim form. They were similarly not mentioned in any of the other evidence other than the claimant's oral evidence at hearing.
7. Referring to decision R3/01(IB)(T), a decision of a Tribunal of Commissioners and particularly paragraph 22 thereof, Mr Kirk submitted that there was no universal obligation on a tribunal to explain its assessment of credibility and submitted that there was no error in that ground of appeal.
8. As regards the record of proceedings in relation to the claimant's driving the Department submitted that while there was no specific mention in the record of proceedings in relation to the claimant saying that he did not drive, it was not a requirement for the record of proceedings to be a verbatim record of all that occurred at hearing. Relying on decision C48/99-00(DLA) para 16 the Department submitted that there was no obligation to make a verbatim record of all that did occur at a tribunal hearing although the record should summarise the relevant evidence.
9. As regards the reliance on the GP records and in particular the question of whether the Tribunal's comment on its knowledge of the GP as a member of the Tribunal panel, being possibly construed as biased, Mr Kirk submitted that the Tribunal's comments were merely explaining why the GP's evidence was found to be of more weight. It was worthy of note that both the claimant and his Solicitor were shown the GP records and neither raised any objection to the contents of the records therefore the Tribunal was entitled to accept the records as being accurate. The comments of the Tribunal were, in the Department's submission, not evidence of bias but rather a clear and transparent explanation of its reasons for preferring the medical records as opposed to the claimant's evidence. The Department submitted that the Tribunal had not erred in law on this point.
10. With regard to the ground relating to Miss M…'s report, Miss M… did discharge the claimant but did so back to his psychiatrist. It was also obvious that there were no mobility needs identified in her report and the Tribunal was therefore quite entitled to prefer the evidence of the claimant's GP which dealt with the issue of mobility.
11. As regards the two grounds in which I had granted leave the Department commented that with relation to the preparation of a cooked main meal the claimant's evidence had been as follows:-

"I can make a cup of tea and sandwich. I used to be able to cook and still can if motivated but I'm forever burning myself and hands shake. I can use ring pull. I have dropped a pan of boiled eggs, don't know, blank spell. I don't trust myself in kitchen 100%. There are sharp knives and thoughts of self-harm which is also why I don't drive."

The Tribunal had commented:-

"Appellant's own evidence now is that physically he can without the help of another person carry out all the activities of daily living including cooking without help from another person day or night".

12. In the Department's submission it could be seen from the above that the Tribunal did not make any specific reference to the problems stated by the claimant. Having said that, as well as the claimant's oral evidence, the Tribunal had considered his application for DLA in which he stated that he had no problems in cooking a main meal. Furthermore the Tribunal had the benefit of examining his medical records prior to the hearing and made the following comment in the reasons for its decision:-

"We have carefully examined the General Practitioner records from May 2003 (the date of claim is 19.8.2003) to 5.1.2004. There are no entries which would support an award of Disability Living Allowance…".

13. The Department submitted that if the claimant's safety in the kitchen had been compromised it would be reasonable to expect that some evidence of this would be recorded in the medical records. Indeed the GP had stated that the claimant could be left safely unsupervised. Therefore in relation to that first issue the Department submitted that the Tribunal neither misunderstood nor ignored the claimant's oral evidence relating to the preparation and cooking of a main meal.
14. As regards Miss M…'s report the Tribunal had recorded:-

"[Miss M…] has discharged him due to an improvement in his mood; she states that despite this he reports to benefit from encouragement, support and prompting but she does not detail this or confirm it."

15. Miss M… had actually stated that the claimant had been discharged back to his psychiatrist and further states that he was in a follow up programme and was due for a review on 26 August 2004. In light of this it was possible that the Tribunal's reading of the report might not have been a reasonable one. However that report was only one piece of evidence that was considered by the Tribunal. The Tribunal also had the benefit of the GP notes and records and it would appear from the reasons that the decision was based mainly on these records. That being the case the Department submitted that the Tribunal was entitled to rely on that evidence to reach its conclusion.
16. As regards Miss M…'s report I would comment first that while the Tribunal should have recorded that Miss M… had discharged the claimant back to his psychiatrist and that he was in a follow up programme, I do not consider that any such minor error amounts to an error of law. The Tribunal is quite correct in its major conclusion that Miss M… had discharged him from her care and that she recorded only that the claimant reported to benefit from encouragement, support and prompting but does not detail that or confirm it and also that she does not deal with mobility problems. The report of Miss M… was therefore not of any great assistance in relation to these matters and the Tribunal was quite entitled not to give it any great weight in relation thereto. That being so there was no need for the Tribunal to further explore Miss M…'s qualifications. I consider there is no merit in the grounds of appeal relating to Miss M…'s report.
17. As regards the burden of proof and assumptions made in relation to medical evidence I should state first of all that the assessment of evidence is a matter for the Tribunal. In this case the burden of proof was on the claimant. He had to satisfy the Tribunal that he fulfilled the conditions for entitlement to DLA. The claimant's submission on the matter seems to relate to the reliance which the Tribunal put on the absence of reference to dizziness and falls in the GP records and to its reliance on the GP report. The Tribunal is perfectly entitled to rely on the GP records and in this case the claimant's GP clearly indicated that the claimant could be safely left unsupervised by day and by night and that there was no history of self harm and that he would not self neglect if left alone. The GP also indicated that he was not aware of any attention and or supervision (those could include reassurance, cajoling or encouragement) required from another person to enable a person to get around in unfamiliar places most of the time. The GP did add that the claimant's mood had been quite low in recent months with suicidal thoughts.
18. The Tribunal did explore with the claimant the question of whether or not the dizziness and falls had been mentioned to the GP and the claimant stated that they had been mentioned and that the GP had said that this was due to his medication. The Tribunal did not accept this explanation and it was entitled not to do so and to rely on the accuracy of the GP records. The accuracy of the GP report was not disputed. That being so it does appear to me that the Tribunal was entitled in assessing the evidence of the claimant, to take into consideration lack of medical records of the falls and dizziness and the GP's opinion as to supervision and guidance needs. The claimant here was contending that he had needs coming in part from dizziness and falls but there was no indication in the GP records that the matter had been mentioned to the GP. This is a matter that one would have expected to see in the records if it had been mentioned to the GP and the Tribunal was entitled to conclude that if the matter was not in the records it had not been mentioned. That being so it was entitled to conclude that this was not a serious or substantive complaint. I find it somewhat puzzling that in the application to me the claimant states:-

"They [the Tribunal] referred to the fact that my dizziness and falls were not mentioned in the GP records. The simple explanation to that is that I did not inform my GP of the falls or dizzy spells."

This is totally different from what the claimant told the Tribunal – he told the Tribunal that he had mentioned the matter to the GP. I therefore find it puzzling that it has now been stated that he did not inform the GP.

19. As regards the GP's membership of the Tribunal panel the Tribunal has indeed mentioned that it knows the GP as a member of the panel and that it feels it can rely on his GP records same being contemporaneous. The claimant had an opportunity to view the records and did not raise an issue as to their accuracy. Now before me he is stating that he did not make complaint of the dizziness and falls to his GP. I do not think that the Tribunal was biased in its approach nor that it used its knowledge of the GP against the claimant. It was simply indicating why it felt that records were accurate. There was no real allegation that they were not other than in relation to the issue of dizziness and falls which now appears to me to be without substance. That being so I do not consider that in the circumstances this ground has any merit.
20. As regards the low rate of the care component for the main meal test I consider that the Tribunal did ignore the claimant's evidence in relation to his concentration while cooking. The claimant contended that he was a danger to himself while cooking. The Tribunal has not dealt with this matter but only with the claimant's physical ability to perform the tasks involved in the preparation and cooking of a main meal. In relation to that matter Mr Kirk submits that the Tribunal could rely on the GP statement that the claimant could be left safely unsupervised. The Tribunal does not indicate that it has relied on that evidence in relation to the cooking test. Rather it refers to the claimant's own evidence as to his physical ability to cook. It does not deal with his evidence that he had memory problems and shaky hands and thoughts of self-harm all of which he claimed affected his ability to prepare and cook a main meal. It is not of course necessary for the Tribunal to refer to every piece of evidence. However, in this case the reference to the claimant's own evidence on the matter indicates that part of this evidence was ignored. I set the decision aside for that reason.
21. Having done this it is unnecessary for me to comment on the ground relating to evidence as to driving.
22. I do not consider that this is a case where I can give the decision which the Tribunal should have given. I remit the matter to a differently constituted tribunal for re-hearing and re-determination. It would be helpful if, at that hearing, the claimant and/or his advisers would make clear to the tribunal whether and if so in what way he disagrees with the GP factual report of 15 December 2003. The conditions of entitlement for DLA are strict and closely defined. The claimant and/or his advisers should make clear which conditions it considers the claimant satisfies and why and should be mindful of the statutory conditions which are set out in the Department's submission to the tribunal. The new tribunal should have a copy of this decision and should resolve with the claimant the matter of the apparently conflicting statements (to the tribunal and to me) as to what was reported to the GP.
23. The claimant wins his appeal.

(Signed): Moya F Brown

Commissioner

27 June 2005