Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision Number: C8/04-05(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 2 October 2003

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 was entitled to the lowest rate of the care component of Disability Living Allowance (DLA) from and including 6 May 2002 and was not entitled to any rate of the mobility component of DLA from and including 6 May 2002. After a Commissioner allowed a late application for leave to appeal on 8 April 2004, leave to appeal was granted by a Commissioner on 19 August 2004 for the following reasons:-

   "The decision may be wrong in law, because it is arguable that the Tribunal erred by (i) not dealing with the issue of the claimant's complaint in relation to the EMP examination and (ii) not considering the amended factual GP report".

2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

3. The claimant is represented by Mr M D, although the claimant has conducted all relevant correspondence with the office on his own behalf. Mrs J Gunning of Decision Making Services (DMS) represents the Department.

4. On 6 May 2002 the claimant made a claim for DLA stating that he suffered from rheumatoid and osteo-arthritis. After a report was completed by the claimant's General Practitioner, Dr M, on 29 July 2002, the claimant was examined by an Examining Medical Practitioner (EMP) on 29 November 2002. On 15 December 2002 it was decided that the claimant satisfied the conditions of entitlement for lowest rate care from and including 6 May 2002. A further letter from Dr M, described as Dr M (sic) in the relevant letter, was received on 14 January 2003, supporting the claimant's claim. The claimant also asked for the decision to be reconsidered. On 28 February 2003 the decision of 15 December 2002 was reconsidered but it was not changed. Thereupon the claimant appealed.

5. On appeal the Tribunal gave the following reasons for its decision in relation to both the care and mobility components:-

   "We have carefully considered all the evidence and submissions, both written and oral and conclude that [the claimant] remains entitled to the lowest rate of the care component of Disability Living Allowance from and including 06.05.2002 but is not entitled to the mobility component from that date. In determining the appeal we have only taken into account the relevant circumstances applying at the date of the decision under appeal (ie the decision dated 15.12.2002).

   On 06.05.2002 [the claimant] made a claim to Disability Living Allowance stating that he suffers from rheumatoid and osteoarthritis. A report was completed by his General Practitioner Dr M on 29.07.2002. [The claimant] informed us that Dr M has been his General Practitioner "for many years". Dr M stated on his report that [the claimant] can safely and unaided

   (a) Get in and out of bed.

   (b) Dress and undress.

   (c) Sit to standing.

   (d) Walk indoors.

   He also stated that [the claimant] would have difficulty with the various activities commonly associated with the preparation of a cooked main meal. An award of the lowest rate of the care component was made as a result.

   On 29.11.2002 [the claimant] was examined by an Examining Medical Practitioner. During that examination the Examining Medical Practitioner found [the claimant] to have virtually full movement in his arms and neck, no muscle wasting in his legs, full movement of his hips, knees and ankles with deliberate resistance to movements. He had slight impairment only in his left ankle and in some upper joints. The Examining Medical Practitioner questioned the need for crutches and correctly pointed out that in his factual report Dr M had stated that no walking aids were used.

   We were asked to accept at hearing that [the claimant's] condition is known best by Dr K, Consultant Physician, the corollary being that Dr M's views and that of the Examining Medical Practitioner should not be taken into account. However, our perusal of the medical notes and records reveals that

   (a) On 10.09.2003 Dr K recorded at review on 01.09.2003 [the claimant's] main complaint related to his right shoulder. (The note states that "in general terms his arthritis is only moderately active").

   (b) On 04.11.02 Dr K records that "examination of individual peripheral joints today did show little active synovitis".

   The above brief overview of aspects of the medical notes satisfies us that the subjective complaints made by [the claimant] is not at all borne out by the objective findings of medical practitioners. Regrettably we did not find [the claimant's] evidence to be convincing. We note, for example his statement that his wife "attends to me during the day". He told us later in his evidence that his wife gets Disability Living Allowance and that his daughter looks after her! We are not prepared to substitute Dr M's amended report handed in at hearing, for the original factual report provided on 29.07.2002. Despite our serious misgivings about [the claimant's] evidence we do not intend to interfere with the existing award. We note Dr K's entry in the notes on 12.03.2003 that [the claimant] was provided with a pair of wrist splints."

6. The claimant then sought leave to appeal and leave was granted by a Commissioner on 19 August 2004.

7. The only arguable points of law, in my view, are those set out in the granting of leave to appeal.

8. In relation to whether the Tribunal dealt correctly with the issue of the claimant's complaint in relation to the EMP examination, Mrs Gunning has submitted that the Tribunal has clearly carefully considered all the evidence, including the medical evidence, and all the relevant submissions and has come to the conclusion that the claimant's complaints were not borne out and accordingly, rejected his evidence; and this rejection deals with the issue of the claimant's complaints against the EMP and, therefore, there is no error in law. She also relied on paragraphs 16 and 17 of the decision of the Tribunal of Commissioners in C3/03-04(IB)(T) where, in similar circumstances, the Tribunal of Commissioners made it clear that a Tribunal must consider the whole of the evidence and, in the event of a conflict of evidence, decide which it refers and explain why. However, in that case there was substantial criticism of the EMP report and, in particular, the claimant alleged that the EMP had been inattentive at times to his explanations during the examination and had inaccurately recorded his answers to the questions of the EMP, resulting in an inaccurate and misleading picture of that claimant's mental health. Accordingly, Mrs Gunning distinguished C3/03-04(IB)(T) by submitting that in the present appeal the Tribunal was dealing with a situation where the claimant stated merely that he disagreed with the EMP findings.

9. Paragraph 8 of C3/03-04(IB)(T) refers to the type of clause requiring comment, i.e. those that are in a category of being "more than mere generalised assertions". I accept that an element of judgment must come in to deciding whether or not there has been an error but it is relevant that in the present case there is a specific allegation that the claimant's grip was not tested, despite the fact that the notes in part 3 of the EMP form suggest otherwise. However, I take the view, in the circumstances of the present case that this is a very minor point, not requiring specific comment. Therefore I conclude that the Tribunal has not erred in this respect.

10. In relation to the second point – namely that the Tribunal might have erred by not considering the amended factual GP report – Mrs Gunning has submitted, in a letter dated 7 September 2004, as follows:-

    "At the hearing [the claimant] submitted an amended copy of the GP factual report which Dr M had initially completed on 29 July 2002. It would seem that the amendments were made on 14 March 2003 and contain details of [the claimant's] treatment at that time. Dr M also gave details of [the claimant's] mobility problems during an exacerbation but gave no details of how often an exacerbation would occur. He had previously stated that [the claimant] could safely manage unaided to get in and out of bed, dress and undress, move from sitting to standing and walk indoors and the report was changed to indicate that he could not manage those tasks unaided. However Dr M did not offer any explanation as to why his report had been altered.

    The details of [the claimant's] treatment at the time of the amended report indicate that his medication had increased however under the provisions of Article 13(8) of the Social Security (Northern Ireland) Order 1998 the tribunal could not take account of any circumstances which did not exist at the time when the decision appealed against was made i.e. 15 December 2002 and the reasons for decision indicate that the tribunal was aware of this.

    The amended factual report is listed under the heading Documents Considered at Part 1 of the record of proceedings and the reasons for decision state that the tribunal carefully considered all the evidence; I therefore submit that the tribunal did consider the amended report. The reasons also show that the tribunal found that evidence in [the claimant's] medical records was in keeping with the findings of the EMP and the information contained in Dr M's original report and accordingly it rejected [the claimant's] evidence. I further submit that the tribunal was entitled to so decide".

    Mrs Gunning has clearly set out the issues in her submissions in relation to this matter of contention. However, the question arises – are her conclusions correct?

11. The claimant did not accept Mrs Gunning's submission and has relied on a general contention set out in a letter dated 6 October 2004, that "the tribunal has been inconsistent, failed in its inquisitorial role, and had not given (him) sufficient reasons for the decision it reached and consequently erred in law."

12. Mrs Gunning has argued that the second report of Dr M was flawed and gave insufficient detail and was also concerned with developments since the date of the decision and, accordingly, was not relevant. If this was the Tribunal's view, in my opinion, it ought to have set this conclusion out in its reasoning. The Tribunal may have had its suspicions about the relevance of the doctor's report but it seems to have decided not to consider the report at all, as it was "not prepared to substitute Dr M's amended report … for the original …". It may be that the Tribunal in fact took the amended report into account as, by stating that it was not prepared to substitute it, the Tribunal may only be saying that it was not prepared to give the equivalent weight to it as compared to the weight given to the earlier report. However, the net result is that the claimant reasonably has come to the conclusion that this evidence was not taken properly into account and also that the Tribunal has not given reasons for not taking it into account. In the circumstances I conclude that the Tribunal has erred either by not considering the amended GP factual report or by giving the clear impression that it probably had not considered the amended GP factual report.

13. In the circumstances, for the reasons set out in paragraphs 10 to 12 herein, I conclude, that the Tribunal's decision was erroneous in point of law. Accordingly I set the Tribunal's decision aside and refer the case to a differently constituted Tribunal for a re-hearing on the merits.

    (Signed):J A H Martin QC

    Chief Commissioner

    16 February 2005