Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2006] NISSCSC C29_05_06(DLA) (10 October 2006)

Decision No. C29/05-06(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 7 October 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the legally qualified panel member by the claimant against a decision dated 7 October 2005 of an appeal tribunal sitting at Newry. The claimant had claimed disability living allowance (DLA) on 5 October 2004. The burden of proving entitlement rested on him. This was disallowed by the Department on 9 November 2004. The claimant appealed and the tribunal made the decision dated 7 October 2005 – disallowing his appeal and upholding the Department's decision of 9 November 2004.
2. I received written observations on the appeal from the Department by letter dated 26 April 2006 and held a hearing on 6 September 2006. The claimant attended the hearing, represented by Mr O'Neill of Newry Citizens Advice Bureau. Mr Sloan of Decision Making Services branch attended to represent the Department. I am grateful to both gentlemen for their considerable assistance. My decision is given in the final paragraph.
3. Mr O'Neill put forward four grounds of appeal. As matters progressed the first ground of appeal altered somewhat. The ground as originally put forward was that the tribunal had erred in drawing an adverse inference from the lack of urgency in treating the claimant's condition. As it developed this ground altered to a submission that the tribunal had erred in drawing such an adverse inference without adequate exploration of the reasons for this lack of urgency.
4. The tribunal's reasoning with regard to the care and mobility components is on two separate documents, one for each component. It is set out in an Appendix to this decision.
5. Mr Sloan supported the first ground of appeal. He initially expressed the view that the minority opinion as expressed in the reasons was correct in its approach to inferences to be drawn from the claimant's medical treatment.
6. Mr O'Neill submitted at hearing that the error lay, not in the tribunal taking into consideration the lack of further efforts to get the claimant mobile but the lack of exploration of why this was the case. He submitted that the tribunal was entitled to take this matter into consideration after proper exploration though it should not, in his view, be fully determinative of the decision which he considered it to be in this case.
7. I consider Mr Sloan's initial support for the first ground of appeal to be on a basis which is much too wide. A tribunal is entitled to look at all the evidence in a case. Part of its adjudication function is to assess the credibility of the evidence. It has no power to conduct an examination of a claimant. If the claimant's medical treatment is not reflective of the degree of disability which a claimant is alleging it is perfectly proper for a tribunal to take that into consideration in assessing the credibility of the claimant's evidence. The same applies if a claimant has not seen fit to mention problems (either at all or as being of the extent subsequently claimed) to those responsible for treating him or her which he mentioned in his claim to the authorities responsible for awarding social security benefits. As an ordinary matter of common sense this can certainly be considered to cast doubt on the veracity of the claimant's evidence.
8. I understood Mr Sloan to subsequently confine his support to the narrower basis which Mr O'Neill put forward at hearing and I think he was correct to do so. A tribunal is entitled to take into consideration the fact that treatment is not reflective of the degree of disability being claimed.
9. The extent of exploration needed by the tribunal will vary in each case. In this case, however, where the claimant's GP had seen fit to make specialist referral and where there was objective x-ray evidence of some underlying problem it was a failure of the tribunal's inquisitorial role not to explore the matter further. If it felt there was a "lack of urgency" it could indicate this and seek an explanation. Whether or not the tribunal accepts such explanation is of course a matter for the tribunal and it is entitled to bring its own common sense to bear on whether or not it does so.
10. I set the decision aside as in error of law for the reason indicated above. A tribunal is certainly entitled to draw its own conclusions from the medical evidence and it is not in error of law in so doing. There is no general rule that a tribunal must put any provisional conclusions to the claimant for comment. However, it must adequately carry out its inquisitorial role. In this case it did not do so.
11. As regards the other three grounds of appeal, the second ground related to an error in the recording on the decision notices. There were two decision notices. However, DLA is a composite benefit and the tribunal made only one decision. That part of the decision relating to the care component was unanimous and the decision notice relating to the care component reflected this. However it incorrectly described the decision as being unanimous. It was not. There was a divergence of views relating to the mobility component. While as the Department agreed, this is an error, it is not in my view one which renders the decision in error of law. The decision notice relating to the mobility component clearly indicates that that part of the decision was a majority decision. Parties are sent both decision notices and would therefore be aware that the decision is a majority one. The decision was composed of the two notices read together and it was clearly a majority decision when so read. I consider there to be no merit in this ground.
12. As regards ground three – which was to the effect that the tribunal had disregarded the claimant's oral evidence at hearing, I agree with the Department that there is no merit in this ground. It is quite clear that this evidence was taken into consideration, indeed reference is made to it in the statement of reasons. Whether or not the tribunal regards that evidence as reliable or as establishing entitlement even if reliable is a matter for the tribunal.
13. As regards ground four which related to the tribunal not having referred specifically to two papers of Commissioners decisions in the reasons for decision, I am at a disadvantage in that these two papers were not before me. The matter is of no importance as I am setting the decision aside on ground one. It is, however, clear from the record of proceedings that the tribunal has considered the said document and its reasons appear to me to adequately explain its decision. I am unable to conclude that there is any merit in this ground.
14. I do not consider that this is a case where I can give the decision which the tribunal should have given. I remit this matter to a differently constituted tribunal for rehearing and re-determination. The claimant wins his appeal.

(signed): M F Brown

Commissioner

10 October 2006

APPENDIX TO DECISION C29/05-06(DLA)
THE FULL STATEMENT OF REASONS OF THE TRIBUNAL DECISION DATED 7 OCTOBER 2005

Care Component

"[The claimant] attended an oral hearing of his appeal in Newry on 7 October 2005 in company of his representative, Gerard O'Neill of CAB. There was no presenting officer present for the Department.

By an outcome decision made on 9 November 2004 the Department had disallowed [the claimant's] claim in respect of both components of DLA from and including the claim date of 15 September 2004. So far as practically possible the Tribunal took into account only the circumstances applying at the date of the decision under appeal – Art. 13(8)(b) Social Security Order (N.I.) 1998 applied.

In his claim form [the claimant] had summarised his disabilities as widespread arthritis of the spine.

[The claimant] walked stiffly but unsupported into the hearing room and sat down gingerly. He was of slim build. He shifted position in his chair to ease himself a number of times during the hearing.

No AT 16 medical report had been received from [the claimant's] GP but his medical file had been made available. An X-ray of the lumbar spine had been carried out on 9 November 2004 and the report said: "There is loss of the normal lordosis. There is a marginal osteophyte formation at multiple levels, most marked at L2/3 where there is also mild disc space narrowing. No other significant abnormality noted."

A report from Mr A W… FRCS, consultant orthopaedic surgeon, on 14 December 2004 recorded:

"He has had neck pain since March of last year. The onset was sudden with no precipitating factor and then low back pain in June/July time. He has pain in his left buttock which goes down round to his left knee.

Examination of the neck shows it is stiff and examination of the upper limbs shows there is weakness of C7. Examination of lower limbs shows some quads wasting on the left hand side.

There are no signs of sinister pathology, no weight loss, no night sweats and no significant night time pain. Five days ago he attended a chiropractor and this seems to have produced some ease in his symptoms."

On the claim form [the claimant] had indicated some difficulty moving about indoors and with getting out of bed but no real needs for help with personal care tasks from another person. In his November 2004 report Dr D…, GP, had indicated his patient was safely and independently mobile indoors.

At hearing [the claimant's] representative was candid enough to say that [the claimant's] main difficulty was with walking but suggested that an award of the low rate of the care component based on the main meal test would be appropriate. [The claimant] did say that referred pain from his neck had reduced power in his left arm and grip in his left hand. His right hand was unaffected. He is right handed. We unanimously concluded that, possibly with suitable aids, he was not so disabled that at the date of decision he would have been physically unable to prepare a cooked main meal for himself using fresh ingredients. On all the evidence [the claimant] was clearly able safely and independently to deal with all other aspects of self care and was safely mobile inside his own home."

Mobility Component

"[The claimant] attended an oral hearing of his appeal in Newry on 7 October 2005 in company of his representative, Gerard O'Neill of CAB. There was no presenting officer present for the Department.

By an outcome decision made on 9 November 2004 the Department had disallowed [the claimant's] claim in respect of both components of DLA from and including the claim date of 15 September 2004. So far as practically possible the Tribunal took into account only the circumstances applying at the date of the decision under appeal - Art. 13(8)(b) Social Security Order (N.I.) 1998 applied.

In his claim form [the claimant] had summarised his disabilities as widespread arthritis of the spine.

[The claimant] walked stiffly but unsupported into the hearing room and sat down gingerly. He was of slim build. He shifted position in his chair to ease himself a number of times during the hearing.

No AT 16 medical report had been received from [the claimant's] GP but his medical file had been made available. An X-ray of the lumbar spine had been carried out on 9 November 2004 and the report said:

"There is loss of the normal lordosis. There is a marginal osteophyte formation at multiple levels, most marked at L2/3 where there is also mild disc space narrowing. No other significant abnormality noted."

A report from Mr A W… FRCS, consultant orthopaedic surgeon, on 14 December 2004 recorded:

"He has had neck pain since March of last year. The onset was sudden with no precipitating factor and then low back pain in June/July time. He has pain in his left buttock which goes down round to his left knee.

Examination of the neck shows it is stiff and examination of the upper limbs shows there is weakness of C7. Examination of lower limbs shows some quads wasting on the left hand side.

There are no signs of sinister pathology, no weight loss, no night sweats and no significant night time pain. Five days ago he attended a chiropractor and this seems to have produced some ease in his symptoms."

On the claim form [the claimant] had indicated that he got severe pain after walking for 5 to 10 minutes and he used a walking stick. He could walk about 100 yards before severe discomfort, taking about 10 minutes to do that. He indicated no need for guidance or supervision when outdoors and no history of falls.

The test for the high rate of the mobility component is contained in S73 of the Social Security Contributions and Benefits (N.I.) Act 1992 and Reg. 12 of the Social Security (DLA) Regulations (N.I.) 1992.

Taking [the claimant's] physical condition as a whole, without regard to circumstances peculiar to him as to place or residence or as to place of or nature of employment, was his ability to walk out of doors so limited, as regards the distance over which or the length of time for which or the manner in which he could make progress on foot without severe discomfort such that he was virtually unable to walk?

All members accepted that [the claimant] suffered back pain as was clearly evidenced by the X ray report and Mr W's report. However, after hearing [the claimant] a majority of our members considered that when the medical evidence was compared to the appellant's evidence, particularly as to likely speed and distance before severe discomfort, his walking was not restricted to the extent claimed. The GP's clinical notes in 2004 mentioned that [the claimant] had difficulties with lifting and carrying but made no particular reference to severe walking problems. Mr W…, the orthopaedic consultant, had not indicated a significant mobility restriction. The majority thought it was likely that if walking had been restricted to the extent claimed then more obvious efforts would have been made, whether by surgery or other treatment, to get [the claimant] mobile again.

The member in the minority considered that an inference should not be drawn from any apparent lack of urgency in the course of treatment. There may have been no realistic surgery option and [the claimant] had attended courses of physiotherapy, albeit with little claimed benefit. He had attended chiropractors privately. There was a clear diagnosed reason for [the claimant's] back pain and his GP, Dr D…, had noted in his November 2004 report that while walking distance had not been recorded his mobility was reduced. The decision placed too little weight on [the claimant's] own evidence, particularly about the level of his pain. In the opinion of the minority member, [the claimant] had done his best not to overstate his case. Casual observation showed [the claimant] to have some scoliosis and he had shifted uncomfortably in his chair a number of times when it would not have been obvious that his posture was being observed.

We moved to consider the low rate of the mobility component the test for which is laid out in S73(1)(d) of the Social Security Contributions and Benefits (N.I.) Act 1992; was [the claimant] so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own could he not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time?

A need for guidance and supervision had not been mentioned in the claim form. There was no evidence of any pattern of falls. No claim was made by [the claimant's] representative that the low rate was appropriate and we found no evidence to suggest that the conditions for the low rate needed to be further examined.

The Tribunal decided unanimously to disallow the appellant's appeal in respect of the high rate of the mobility component but to retain the award already made from the date of claim on 15 September 2004."