Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2006] NISSCSC C6_05_06(DLA) (13 February 2006)

Decision No: C6/05-06(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 19 January 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, with the leave of the legally qualified member of the tribunal, by the claimant against a unanimous decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant was not entitled to either rate of the mobility component or any rate of the care component of disability living allowance (DLA) from and including 16 August 2004.
2. On 20 December 1994 the claimant made a claim for DLA stating that she suffered from asthma and ischemic heart disease. On 12 January 1995 an adjudication officer decided that the claimant was entitled to the higher rate of the mobility component and the highest rate of the care component from and including 20 December 1994. As is fairly common practice, the claimant's case was looked at again and, on 1 March 2004, she was asked to fill in form DBD429 setting out the latest position about her condition. On 11 March 2004 the claimant returned this form setting out the details of which doctors she had seen in the previous six months about her medical condition. Accordingly a report was completed by Dr Roddie, her general practitioner, on 4 May 2004 and on 5 August 2004 the claimant was examined by an examining medical practitioner. On 16 August 2004, after consideration of all the relevant evidence, it was decided that the claimant's claim should be disallowed from and including 16 August 2004. This decision was by way of supersession. The claimant then appealed on 9 September 2004 and on 23 September 2004 her doctor forwarded her general practitioner notes on behalf of the claimant.
3. On appeal the legally qualified member made the following record of proceedings:

"[The claimant] appeared represented by Sandy McKeown of EBIAC. Gary Galbraith represented the Department. All parties prior to the Tribunal had been given the opportunity to consider the General Practitioner notes and records and did so.

The Tribunal had been given a copy of the submission and a medical report from Dr Mcllmoyle and had considered it.

The Chairman introduced the panel and explained the procedure. He also went through the history of the matter which was well set out in the papers. These showed that [the claimant] had been entitled to the high rate mobility component and high rate care component from and including 20th December 1994. A periodic review was carried out and a report obtained from Dr Ruddy (sic) on the 4th May 2004 and thereafter an Examining Medical Practitioner's report was obtained on the 5th August 2004. As a result of this on the 16th August 2004 it was decided that [the claimant] should be disallowed from and including 16th August 2004. The Department contended that grounds existed on the 16th August 2004 to supercede (sic) the decision of the 12th January 1995.

Mr Galbraith for the Department indicated that the 1994 claim form stated problems with walking and substantial care needs and as a result high rate care and mobility were granted. There did not appear at that time to be an Examining Medical Practitioner's report. The only medical evidence that apparently was obtained was a General Practitioner's note at the back of the original claim form. He went on to indicate that as a result of the Examining Medical Practitioner's report the Department had come to the conclusion there was an improvement and hence the removal of the award.

By way of reply Sandy McKeown indicated that in fact [the claimant's] condition had deteriorated and she invited the Tribunal to obtain whatever evidence they chose from [the claimant].

The Chairman then invited [the claimant] to tell something of her history and the history of her various problems.

[The claimant] indicated she was currently 72 years of age and lived in a two storey terraced house. Unfortunately her husband had died some 4 years ago and she lived on her own. She has a son who works in Bangor and comes to see her on a Sunday. She has a homehelp who attends her for an hour on a Tuesday and does chores like ironing. She also has another lady who comes to the house and does heavier housework. She went on to explain that she is part of the home safety project with a local association who check on her on a Wednesday, Thursday and Friday on the telephone and find out if she has any problems. She confirmed to the Tribunal that she is still driving a car and she believes this is her only way of getting around. She described her situation as being a prisoner in her home without same.

In relation to her various medical complaints she explained that she had a hysterectomy some 10 years ago and still has problems with her bowels. She is awaiting a scan. Her main problem is with breathing. She has continuing heart problems. She explained that she has a continual cough which seems to effect her bowel as well. A combination of all three gives her difficulties. She takes her inhaler four times a day for her asthma and has a home nebulizer which she can manage herself.

In relation to her mobility the Chairman asked her to outline her problems with walking. She indicated that when she is out of doors the wind effects her and makes her stop. On an ordinary day she could walk but not very far. She was asked to be more specific and indicated she could walk to the post office from her own home but she really did not know how far this was. If her asthma flared up she might have to stop and rest and then move on. On a bad day she could not go out at all. In winter time she said she does not really go out that much. In summer she can walk further but contended that she gets pains in her arms and chest which stop her. She described for example when she was in church on one occasion she had to leave for a short period because of a bad cough.

The Chairman invited her to explain how she had told the Examining Medical Practitioner that she tries to get out everyday and is able to walk to the local shop 200 to 300 yards away. She indicated that she meant this was only a good day. She agreed that she had in fact told the Examining Medical Practitioner that this was her walking distance but did not mean to say that it was everyday. The Chairman invited her to explain exactly what would stop her when walking and she said it was a breathing problem. She would have to stop and use her inhaler.

She was also asked what the position was about falls and she indicated she was safe in her own home, that she really does not fall but tends to knock into things. She does have a stick which she got from her friend after Dr Mcllmoyle indicated she would be better with one. She went on to indicate that she fell in a supermarket and had broken a toe. It was also pointed out to her that the General Practitioner notes and records indicated she had been to Tenerife. She indicated her Doctor had told her she was fit to go but unfortunately she ended up in hospital for the day and had to receive an antibiotic by way of drip and could only sit around for the rest of her holiday. She was with a group from her church. In answer to Mr McAleenan Tribunal member she indicated that she can drive and would normally go to somewhere in Holywood. In her own words she said she could dander around a supermarket although she could not carry out a normal shop and would have to have someone to lift the goods and put them in her car. She is able to visit her son on a Sunday.

She was asked specifically to comment on the Examining Medical Practitioner's opinion that she was able to walk 300 to 400 yards albeit at a slow pace but there may be a possibility that she would need to stop if she got chest pains.

She indicated she did not know much about distances but indicated she did not accept this was correct. She said she might be able to manage 200 yards on a good day which is roughly the distance from her house to the Co-op.

She was also asked by the Tribunal Chairman about her irritable bowel syndrome and indicated at times she has to stay in in the morning because of it. She has problems with incontinence. She has had some accidents. She was also asked what the position was about panic attacks and she confirmed that she gets these but is able to calm herself and take a tablet diazepam. She was also specifically asked what support she requires when walking out of doors and she indicated she uses a stick as suggested by her General Practitioner. She indicated that as she gets angina she uses a spray.

In relation to her care needs she indicated to the Tribunal that she would get up at 9.00 am. She explained how on some mornings she gets a call from the safety project who monitor her. She is able to toilet herself if she takes her time and able to get up out of bed on her own. She is independent in the shower and can also dress and undress. Again if she takes her time. She is still able to use her car and describes it as a life line which gets her out. She is able to go to her friends. She is able to stay on her own throughout the day and is able to get into bed at night. She spends quite a bit of time upstairs to avoid having to go up and down the stairs and watches television. She also has a phone.

In relation to cooking she indicated she tends to buy ready made meals from Marks and Spencer. She was asked to comment on the fact that she told the Examining Medical Practitioner that she makes a main meal for her family once a week. She indicated that was correct. She indicated she could peel potatoes and use the grill. She makes really one meal a day for herself.

To the Panel Doctor she indicated she has been assessed by an Occupational Therapist who suggested rails etc. In response to Mr McAleenan she indicated when she was in the bathroom she would take the phone with her in case she would have falls. On one occasion she did fall and hurt her ribs. Her shower is in the bath. She steps in and has a stool. She described that she had problems with the stairs. She indicated it was mostly because of shortness of breath. She is able to manage during the night. She leaves a glass of water beside the bed and is able to fix up the bed. She is also able to self medicate in the event of a panic attack. She indicated that she thought loneliness was a cause of bringing on a panic attack and uses her nebulizer three or four times a week.

The Tribunal Chairman asked her to comment on the report from Dr Mcllmoyle that had been supplied to the Tribunal which would appear to the conflict of the evidence of the Examining Medical Practitioner and also asked her to comment on the report of Dr Ruddy (sic). She indicated that Dr Mcllmoyle would know more about her than Dr Ruddy (sic). The Chairman specifically asked her to explain how she told the Examining Medical Practitioner her walking distances were 200 to 300 yards in 15 minutes whilst Dr Mcllmoyle had indicated that her walking distances were reduced to 25 yards. She said that Dr Mcllmoyle's assessment was on a bad day.

The Tribunal Chairman specifically asked her if she had more good days than bad days and indicated that she had more good days.
No one had anything further to add."

4. The tribunal gave the following reasons for its decision in relation to the mobility component:

"The Tribunal find that [the claimant] can walk at least 200 yards before the onset of severe discomfort. They accept her statements to the Examining Medical Practitioner as truthful and represent and (sic) true position in this case. They have found she can walk this distance at a slower than normal pace and if she were to have a panic attack she would be able to deal with it herself. Similarly if she had angina pains she was able to take her spray. The Tribunal have found that providing she uses her stick she is perfectly safe and is not liable to falls nor would walking lead to a deterioration in her life that would endanger her life. She does not have any mental problems and is able to drive her motor car. She was able to go on a holiday. She is independent and in this regard the Tribunal accept the evidence of the Examining Medical Practitioner. They reject the evidence of Dr McIlmoyle as it conflicts firstly with the evidence that [the claimant] gave to the Examining Medical Practitioner and secondly conflicts with the direct evidence that the Appellant gave to the Tribunal. The Tribunal have also had the opportunity to see and speak to [the claimant] and are quite satisfied there is no question of this lady being unable or virtually unable to walk or requiring guidance or supervision whilst walking out of doors. [The claimant] at the height of her own case indicated she needs help on bad days. The Tribunal cannot accept this. The Tribunal have specifically taken into account the fact that this lady has a combination of problems and whilst they have sympathy for her position they have no alternative but to agree with the Departmental submission that there has been an improvement in her condition and therefore grounds to supercede (sic) have been established and that the effective date of supercision (sic) should be 16^th August 2004. Accordingly she is not entitled to either high or low rate mobility as and from that date."

5. The tribunal gave the following reasons for its decision in relation to the care component:

"The Tribunal are satisfied that [the claimant] is an independent lady who is able to live on her own. She does not require attention from another person with her bodily functions nor any form of supervision either during the day or at night. Specifically she is able to get up, dress herself, wash, shower and maintain a good standard of hygiene. She is able to move about indoors on her own independently. She is able to get in and out of bed and is able to toilet herself, take her own medication and cope with any panic attacks that she may have or any angina attacks. She is also able to take care of herself at night and does not need any help from any other person. She is able to retrieve bed clothes if necessary and deal with any toileting during the night.

She does not need anyone to be awake to sit up or watch over her.

She is independent in relation to cooking and the Tribunal accept her evidence to the Examining Medical Practitioner which she confirmed to the Tribunal that she is able to cook a main meal for herself if she had the ingredients. In particular she is able to chop and peel vegetables, manage a cooker, plan a meal and in fact her evidence to the Examining Medical Practitioner was that she could make her family a meal once a week. The Tribunal specifically reject the evidence of Dr McIlmoyle in this regard as it conflicts directly with the evidence of [the claimant] to the Tribunal.

The Tribunal also considered whether or not [the claimant] required any form of encouragement and find that she does not. The Tribunal specifically considered the effect of the combination of all her problems of [the claimant] but having seen and spoken to her they are driven to the conclusion that she is an independent lady who does not require attention from any person for a significant portion of the day with her bodily functions. She is able to do all things for herself albeit at a slower than normal pace. She is also able to make a main meal for herself. Accordingly she is not entitled to the lowest rate of the care component.

The Tribunal are likewise satisfied that she does not require frequent attention from another person with her bodily functions nor does she need any form of supervision from another person to prevent substantial danger to herself or others nor does she have any night-time needs or requires prolonged or repeated attention from another person with her bodily functions. She does not need anyone to watch over her or be awake for periods to avoid danger to herself or any other person.

Accordingly she is not entitled to either middle or high rate care component disability living allowance."

6. The claimant sought leave to appeal to a Social Security Commissioner and, on 26 April 2005, the legally qualified member granted leave on the following point of law – "alleged inadequate reasons".
7. A hearing of the appeal was arranged at which the claimant, who was not present, was represented by Miss Loughrey of the Law Centre (NI), while the Department was represented by Mr McGrath of Decision Making Services.
8. The issues raised by the appeal have been properly incapsulated by Mr McGrath in the following terms:

(1) whether the decision of the tribunal was erroneous in failing to explain adequately how it reached the conclusion that it had no alternative but to agree with the Department's submission that there had been an improvement in the claimant's condition; and

(2) whether the decision of the tribunal was erroneous in failing to explain whether in fact it weighed all the evidence, including the general practitioner's notes and records, with particular reference to the claimant's falls, before reaching its decision.

9. Miss Loughrey emphasised the fact that this was a supersession case. Regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 requires that there must be a relevant change of circumstances since the original decision was made before there can be supersession. Accordingly the tribunal is required to address its collective mind to the claimant's overall health problems, symptoms and limitations in relation to both care and mobility before it can be satisfied that there has been an improvement in her condition. Miss Loughrey submitted that the tribunal did not deal with conflicts in evidence relating to her mobility, especially in relation to a history of significant falls, nor did it consider the fluctuating nature of her condition. In addition it did not attempt to measure how long the claimant would take to perform particular tasks before satisfying itself it was reasonable to expect her to perform those tasks unaided.
10. Mr McGrath submitted that the tribunal was entitled to conclude, on the evidence before it, that there was no question of the claimant being unable or virtually unable to walk or requiring guidance or supervision whilst walking outdoors. The tribunal came to the conclusion that the claimant could walk at least 200 yards before the onset of severe discomfort. This is a long way from being unable or virtually unable to walk.
11. Mr McGrath also submitted that it is clear that the tribunal had considered all the relevant papers, including the general practitioner's notes and records and a written submission with attached medical report from Dr McIlmoyle. The tribunal also recorded that the claimant "really does not fall but tends to knock into things" and that "she indicated she was safe in her own home". She also explained that she used a stick. The tribunal in its reasoning also recorded specifically that it found that, provided she used her stick, she was perfectly safe and not liable to fall.
12. The claimant received an award of DLA, both components at the top rate, back in January 1995. The present case arose out of what has been called "a periodic review". It is noteworthy that there was no examining medical practitioner's report back in 1995 as only a general practitioner's report was necessary to support the claim. It seems that the claimant's case, as argued at the tribunal was that her condition not only had not improved but had deteriorated over the previous decade. The tribunal made a finding that there had been an improvement but has not specified exactly what was the base line that they were operating from. However, the tribunal has come to conclusions that the claimant's condition is such that it is not within the parameters where any awards can be made in relation to DLA. It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal's conclusions unless:

(a) there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

13. In the present case the tribunal's conclusions are based on sufficient evidence, it seems to me that its assessment of the evidence was reasonable and the primary facts found by the tribunal justify its conclusion. While it might have been preferable if the tribunal had referred back more specifically to the situation in 1995 for comparison purposes with the updated situation, implicit in the tribunal's findings is the proposition that there must have been a considerable improvement otherwise no award would have been made back in 1995. There may be situations in borderline cases where a tribunal might be required to be very specific in setting out details of improvement but in a case, such as the present one, the evidential findings of the tribunal make the point implicitly that there must have been a considerable improvement in the claimant's condition.
14. Miss Loughrey's point that the tribunal erred by concluding that "they have no alternative but to agree with the Departmental submission that there has been an improvement in her condition" – the implication being that the Departmental submission is assumed to be correct until proved to be wrong. I do not think that this sort of "textual criticism" – the phrase used by May LJ at paragraph 35 of the English Court of Appeal case Fryer-Kelsey v The Secretary of State for Work and Pensions [2005] EWCA Civ 511 – can be elevated into a point of law. It might have been preferable if the tribunal had merely stated that it had come to the same conclusion as the decision-maker but, in my view, nothing turns on this point as, looking at the decision in general, it is entirely clear that the tribunal has carefully, if not laboriously, come to the conclusion to which it came in an entirely independent and judicious way.
15. There is no doubt that the tribunal had access to voluminous medical evidence, including the general practitioner's notes and records and it is clear that there are references to falls in those notes. Nevertheless, it is clear that the tribunal has perused these notes carefully and taken them into account. However it was also entitled to rely on the oral evidence of the claimant in relation to the nature and propensity of the claimant to fall at the time relevant to this case, namely, August 2004. The conclusions to which it came, in my view, are sustainable.
16. Miss Loughrey submitted that the tribunal had erred by failing to deal adequately with the issue that the claimant was at certain times more incapacitated than she was at other times and that the tribunal appears to have not taken this into account in its decision making process.
17. There is no doubt that the evidence was such as to make "exacerbation" of the claimant's condition an issue of the case. Moreover, the tribunal clearly accepted that it was an issue. Nevertheless it concluded in substance that, even on "bad days", she did not satisfy the statutory criteria.
18. It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal's conclusions unless:

(a) there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the tribunal's inferences and conclusions. However, even if I were in disagreement, that does not render the decision erroneous in point of law as the tribunal's conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion. In my view the tribunal was entitled to come to the conclusions to which it came, and on the found facts, "exacerbation" of her condition was not a significant issue in this case.

19. For the reasons stated I conclude that the tribunal has not erred in law. Accordingly, I dismiss this appeal.

(signed): J A H Martin QC

Chief Commissioner

13 February 2006