Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2006] NISSCSC C18_06_07(DLA) (17 December 2006)

Decision No: C18/06-07(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 8 August 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 8 August 2005 of an appeal tribunal sitting at Belfast. That tribunal had disallowed the claimant's appeal against a departmental decision dated 2 December 2004. The decision was made in connection with the claimant's renewal claim for disability living allowance (DLA) and was to the effect that the claimant was not entitled to DLA from and including 7 August 2004.
2. In the appeal to me the claimant has been represented by Mr McVeigh of the Citizens Advice Bureau and the Department by Mr Kirk of its Decision Making Services branch. I am grateful to both representatives for their assistance in this matter. My decision is given in the final paragraph.
3. The grounds of appeal were essentially two-fold and related to how the tribunal dealt with medical evidence. The first ground related to a letter dated 19 July 2005 from the claimant's general practitioner (GP) which she submitted to the tribunal in support of her appeal. Essentially the ground was that the tribunal had failed to consider that letter or if it had done so had not adequately dealt with the letter in the reasons for decision. I set out the tribunal's reasons for decision as an appendix to this appeal.
4. The second ground of appeal related to the report, dated 29 September 2004 of an examining medical practitioner (EMP). The claimant had informed the EMP that she was in too much pain to allow examination of her back or to attempt to get out of bed or stand or walk at all on that particular day and the EMP had therefore been unable to give an assessment of the claimant's lower limb function. He was, however, able to assess her upper limb function, this he did giving the assessment of "full function". The tribunal had indicated that it attached little weight to this report preferring to rely on the GP records and reports from Dr W…..and Mr E….. However the tribunal did indicate that it placed some reliance on the EMP's finding of "full function of the upper limbs" which was not disputed by the appellant. Mr McVeigh submitted that the tribunal should not have placed any reliance on the EMP's report and also that it had not raised the matter of the findings on the upper limbs with the claimant and was therefore in breach of its inquisitorial role.
5. In relation to ground one Mr McVeigh relied on decision R2/04(DLA)(T) and in particular on paragraph 12 thereof to support his submission.
6. The Department opposed the appeal. By letter of 3 July 2006 Mr Kirk submitted that it was quite apparent from the tribunal's record and from its reasons that it had considered the GP's letter of 19 July 2005. The tribunal had specifically recorded that it had considered this letter and in its reasons it had stated:

"We have already referred to the additional medical evidence he [the claimant's representative at the hearing] supplied although it is for us to decide how to interpret it and how much weight to give to it as interpreted by us."

7. Referring to decision R2/04(DLA) (T) Mr Kirk submitted that the weight to be attached to medical evidence in the preference of one medical report to another was a matter for the tribunal. The tribunal should give adequate reasons for its decision. Where medical evidence which the claimant had put forward as central to her appeal was being rejected or little weight being placed on it the provision of adequate reasons would usually involve indicating the tribunal's assessment of that evidence. This need not be lengthy but must be sufficient to indicate to a reasonable person why the tribunal did not rely on that evidence.
8. Mr Kirk submitted that when the tribunal's reasons were read as a whole it was clear that the GP's evidence was considered and implicitly rejected. He submitted further that it was reasonable for the tribunal to decide to rely on the consultant's letters and findings from the medical records rather than the GP's letter. He submitted that there was no merit in this ground of appeal.
9. As regards the second ground, Mr Kirk submitted that when the tribunal had stated that it was not placing much weight on the EMP report it was relating the comment to the mobility component. Relying on my decision in C10/05-06(DLA) paragraph 8 Mr Kirk submitted that the reasons for decision must be read as a whole and particular parts should not be isolated from their context and from the remainder of the reasons. He stated that the claimant did not dispute the findings of the EMP report and that the tribunal was, in the absence of any objections to those findings, entitled to use them to assist it in reaching its decision. Reliance on this evidence was not an error of law as far as used by the tribunal.
10. I think it is important in this appeal to indicate precisely what the GP stated by way of evidence. The first evidence from the GP was by way of a report dated 6 July 2004. In that report the GP indicated that the claimant suffered from chronic low back pain and joint pain. He indicated that her mental state was not such that she needed prompting, motivation or encouragement in order to prevent the risk of self-neglect or self-harm. He indicated that she could safely and unaided get in and out of bed, dress and undress, sit and stand and walk indoors. He said that it was unknown whether or not she could safely and unaided use stairs or carry out the tasks associated with preparation and cooking of a main meal. He stated that there had been no recent falls. Asked about the claimant's walking difficulties he responded, "unknown". He did not answer the question as to whether or not attention or supervision was required to enable the claimant to get around in unfamiliar surroundings most of the time. The second piece of evidence from the GP was the letter of 19 July 2005. This letter stated that it was being written in support of the claimant's DLA claim. It stated that she had a long history of significant back problems (prolapsed intravertabral discs) for which there is no definitive cure and that she also had symptoms of fibromyalgia and depressive symptoms due to her significant disabilities. The GP then went on to state that the claimant relied totally on her family for everyday tasks – she was unable to cook, shop or perform simple cleaning tasks. She had been unable to drive for over two years and that on "bad" days she required help with washing, dressing and for toilet needs. Medication was then recited.
11. I am in agreement with the Department that it is quite apparent that the tribunal did consider that report. It specifically recorded that it did so and it does refer to the additional medical evidence. I am in agreement with the Department that the tribunal placed most reliance on the consultant's report and that it was entitled to do so. It is quite apparent, even reading the letter of 19 July 2005, that the GP considered that on "bad" days the claimant needed help with washing, dressing and toilet needs. The tribunal has acknowledged that there is a back pain problem but has concluded that most of the time the claimant is able to carry out these tasks. This would be in accordance with the GP's own evidence in the earlier report and indeed in the letter of 19 July 2005. The GP has stated that the claimant relies totally on her family for everyday tasks and that she is unable to cook, shop or perform simple cleaning tasks. The tribunal has obviously not accepted that the claimant's disablement is to such a level that she is unable to cook a main meal for herself. The only inconsistency which I can find in the GP's letter of 19 July 2005 and the specialist evidence is in relation to the statement that she cannot cook etc. However, when this is read against the background of the report of 6 July 2004 when the GP stated that he did not know whether or not the claimant had any difficulties with cooking tasks it is understandable why the tribunal would rely in full on the specialist's reports. These are, as the tribunal has stated, not indicative of the level of disability being claimed by the claimant. In particular, as the tribunal has highlighted, while there are disc bulges and an annular tear there is no involvement of the spinal cord and no compression of the nerve roots and there is no inflammation and no disc degeneration. There is wear and tear rather than arthritis as such and the consultant rheumatologist felt that the claimant was fit for aerobic exercise and for physiotherapy. While therefore I consider that the tribunal could, perhaps, have dealt in rather more detail with the evidence from the GP its decision is nonetheless adequately explained. The tribunal is not required expressly to mention every item of evidence when the context of a decision makes clear why it decided as it did in light of the submissions made. It is, in my view, quite clear why the tribunal reached the view that it did. It has not necessarily rejected the GP's evidence as indeed much of that evidence is quite consistent with the consultant's findings. It would be surprising if it was not. The GP's letter does not indicate that most of the time there is an inability to carry out bodily functions without assistance. Reading the reasons as a whole it is quite apparent why the tribunal reached the decision it did. It considered that the medical evidence and in particular the consultant's reports were not supportive of the claimant's contentions. I do not consider that the reasons are inadequate to explain the decision to any reasonable person reading them.
12. It is worth noting the decision of the Court of Appeal in R(Iran) and others v Secretary of State for the Home Department [2005] Civ 982 which at paragraph 15 stressed:

"… the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings."

I consider the thought processes to be clear in this case.

It is also worth noting the views of Lord Penrose in Asif v Immigration Appeal Tribunal [1999] ScotCS where he said:

"… nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it."

I am in agreement with both the above and consider the question to be, as has often been reiterated, whether the reasons adequately explain the decision to a reasonable person reading it against the background of the evidence. In my view they do so in this case. There is no merit in the first ground.

13. As regards the second ground and the EMP's report I am again not of the view that there is any merit in this ground. I consider that Mr Kirk is correct in his submission that the tribunal was not relying on the EMP's report in relation to the mobility component but that it was entitled to do so in relation to the upper limb function. The EMP obviously felt able on the basis of such examination and observation as he was able to make to reach that finding and the tribunal was entitled to rely on it. However it is also apparent that the tribunal did not rely only on that finding. It has, as mentioned previously, obviously put most reliance on the findings of the consultant. The tribunal has clearly indicated why it is not relying on the EMP's report in relation to the mobility elements and there is no error of law in relying on such findings as the EMP could make. These findings are not inconsistent with the consultant's findings.
14. As regards the issue in relation to the inquisitorial role I consider that the submission in this respect is fundamentally misconceived. It does not appear to me that there is any merit in the ground in relation to the inquisitorial role. The evidence of the EMP's report was clearly before the claimant and the tribunal did not in any way mislead the claimant. It did not tell her that it was going to give no weight to that report. The claimant was at liberty and indeed did give evidence in support of her own claim. Her own medical evidence shows that the MRI scan revealed disc degenerative disease of the lumbar spine this being the lower spine and that she complained of more generalised pains affecting her wrists, shoulders, neck, knees and hips. She has therefore submitted medical evidence with relation to this matter and the tribunal has obviously taken it into consideration. It is noted that the consultant to whom she made this complaint, Dr W…., advised her on the importance of graded aerobic exercise. It does not appear to me that the tribunal failed in any way in its inquisitorial role in not expressly raising this matter. The claimant had the opportunity to rebut any evidence which she chose to rebut. The evidence was clearly there on the face of the papers and the tribunal gave the claimant no impression that it would not rely at all on the EMP's report. There was therefore no breach of the rules of natural justice. The case of Baron v Secretary of State for Social Services (reported as an appendix to R(M)6/86) is relevant. In that case May LJ stated therein:

"I do not think there was any obligation on [the tribunal] … to intersperse in their examination of him, [the claimant in that case] or to put to him at the end of their examination that they were not minded to accept that which he was telling them. That was the very issue which they had to determine."

The tribunal in this case had to determine what evidence it would accept and rely on. If the claimant wished to dispute any evidence she certainly had the opportunity to do so. The EMP report was there on the face of the papers and the claimant could counter it. The tribunal was entitled to rely on what evidence it saw fit. It has been emphasised in numerous decisions and I refer again to the case of Piglowska v Piglowski [1999]3AER632 as authority for the proposition that the weight to be given to a piece of evidence is a matter for the tribunal. It is only if its reliance on any evidence is perverse or unreasonable that an appellate body can upset it. It was not so in this case.

15. I am in agreement with the Department that the grounds of appeal are without merit and I dismiss this appeal.

(signed): M F Brown

Commissioner

17 December 2006
 


APPENDIX

REASONS FOR DECISION (including legislation and Commissioners Decisions considered by the Tribunal):

September 2004 - Mr Eames – examination reassuring, no evidence of arthritis and discharged.

August 2004 - Dr Wright – reassured. No inflammation. Encouraged exercise and physiotherapy.

(They had access to her MRIs) i.e. mechanical low back pain and disc degeneration to explain symptoms but how disabling?

No evidence in notes of falls. No crutches recommended by doctors.

No reference to night-time cramps and night-time urinary problem.

At date of decision she had not applied for Occupational Therapist assessment despite complaining of back pain 10 years.

Only analgesia is Voltarol and now discontinued and Diazepam as muscle relaxant only.

Diagnosed fibromyalgia only. She had a minor fall 10 years ago which would not account for the alleged degree of disablement. She has mechanical low back pain with some disc degeneration but no arthritis, no inflammation and no trapped nerves.

She has seen a lot of different doctors over a long period, including privately, and they recommend painkillers and exercise only, they don't want to operate or do injections.

The General Practitioner report 6.7.2004 says no prompting and no recent falls but otherwise is uninformative. However the Consultant Rheumatologist on 31.8.2004 clearly felt she was fit to do graded aerobic exercises and physiotherapy but she stopped attending physiotherapy because she felt it was not beneficial.

Basically we are not accepting her evidence because the alleged degree of disablement is not supported by the medical evidence (ie 20 yards in 10 minutes and guidance/supervision and all attention, supervision day and night and cooking, as per DLA1).

With regard to the previous awards, Higher Rate Mobility and Lower Rate Care 2000-2002 and Higher Rate Mobility and Middle Rate Care 2002-2004, they are based on Examining Medical Practitioner reports but this time the Examining Medical Practitioner was unable to do a full examination and we can give little weight to the report of 29.9.2004 and must rely on the General Practitioner records.

With regard to her letter of appeal (i) she feels she has been discriminated against because she does not attend a National Health Service specialist regarding her back and joint conditions but we have seen reports from Dr Wright and Mr Eames, (ii) MRI scan shows disc bulges at L4/5, L5/S1, C3/4, and an annular tear at L4/5 but the spinal cord is not involved, there is no compression of the nerve roots, there is no inflammation and disc degeneration and wear and tear rather than arthritis as such, (iii) she has fibromyalgia but the Consultant Rheumatologist felt she was fit for aerobic exercises and physiotherapy.

We have also considered the letter of 22.6.2005 from Mr Beggs. He has some complaints about the administrative side of the claim by the Department but as an independent body we cannot comment on this. He also complains about the conduct of the Examining Medical Practitioner visit on 29.9.2004. As we have already said, we have attached little weight to this preferring to rely on the General Practitioner records and the reports from Dr Wright and Mr Eames. He refers to help with housework but strictly speaking this is irrelevant to Disability Living Allowance which is about, inter alia, help with bodily functions. We have already referred to the additional medical evidence he supplied although it is for us to decide how to interpret it and how much weight to give to it as interpreted by us. He says he has observed her husband cooking but the issue for us is not who does the cooking for the family but whether the appellant is so severely disabled mentally or physically that she cannot cook a main meal for herself and he should note the Commissioner's decisions in the interpretation of this, which we have applied – see e.g. R2/02(DLA), and the fact that the Examining Medical Practitioner found full function of the upper limbs (and appellant did not dispute this).