Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2006] NISSCSC C_013_05_06(DLA) (10 February 2006)

Decision No: C13/05-06(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 14 January 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, leave having been granted by the legally qualified panel member, against a decision dated 14 January 2005 of an appeal tribunal sitting at Belfast. That tribunal disallowed the claimant's appeal against a departmental decision dated 16 July 2004. By that decision the claimant was awarded the lower rate of the mobility component from 5 August 2004 to 4 August 2006. She had previously been in receipt of an award of the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) from 5 August 2002 to 4 August 2004. When the claimant's appeal came before the tribunal the tribunal warned the claimant at the outset that it was possible that the award of the lower rate mobility component was at risk. She was advised that she could withdraw her appeal regarding the care component and retain the mobility award. The claimant decided to proceed with the appeal. She did lose the mobility award and the tribunal decided she was not entitled to DLA from and including 4 August 2004. She has appealed to a Commissioner. My decision is given in the final paragraph.
2. The grounds of appeal are set out in the application to the legally qualified panel member dated 24 June 2005. They are twofold as follows:

(i) That the tribunal had erred in law in failing to accept the evidence of the claimant's General Practitioner (GP) that she was very anxious and needed encouragement and accompaniment on unfamiliar routes. The tribunal found that the claimant could reasonably be expected to use a walking stick for reassurance instead of wishing to be accompanied and that she could seek directions if she was on an unfamiliar route. These findings, it was submitted, did not constitute valid reasons for rejecting the GP's report. That report confirmed that the accompaniment and encouragement was required due to the claimant's anxiety.

(ii) The tribunal erred in basing its decision on GP records which predated the period under appeal by approximately three years. The tribunal had recorded in its reasons for decision that the records available did not include computerised records from 2002 onwards. The records from 2002 onwards would have been more appropriate to the period under appeal. An example was cited of the claimant having developed low back pain from December 2003 and the information relating to this would, it was submitted, not have been included in the records before the tribunal.

3. In the appeal to me the claimant has been represented by Mr McVeigh of the Citizens Advice Bureau and the Department by Mr Hinton of Decision Making Services Branch. I am grateful to both representatives for their considerable assistance in this matter.
4. The Department opposed the appeal and made observations thereon in its letter dated 10 October 2005. With regard to the first ground the Department submitted that the tribunal had not rejected the evidence that the claimant suffered from anxiety. It was, however, the level of needs arising from that anxiety that was disputed and rejected. The Department submitted that, based on the claimant's own evidence, the tribunal had accepted that it was the claimant's fear of falling that led to her wanting to be accompanied. In its reasons for decision the tribunal stated:

"Although [the claimant's] GP had reported that she was very anxious and needed encouraged and accompanied on unfamiliar routes, the Tribunal disagrees with this opinion. [The claimant] in her claim form stated that she felt more secure if someone was with her. She can reasonably be expected to use a walking aid for re-assurance instead of wishing to be accompanied. The Tribunal noted that she has the concentration to drive a car across Belfast to work and she agreed that she could seek directions if she was on an unfamiliar route. …"

5. In the Department's submission the tribunal had accepted the evidence of the claimant in her claim form in favour of that provided by the GP and this assessment was not irrational, perverse or unreasonable. There was sufficient evidence to found the tribunal's findings.
6. With regard to ground (ii) the Department submitted that the tribunal's decision was not based on GP records which predated the appeal. The tribunal had expressly stated that the records available did not include computerised records from 2002 but it had recorded that the evidence provided by the claimant in her renewal claim form plus the GP's factual report of July 2004 was sufficient to enable it to make a decision. Back pain was alluded to in the GP's factual report. The Department submitted that the tribunal based its decision on evidence that was appropriate to the date of decision that was subject to the appeal.
7. Mr McVeigh made further observations on the appeal by letter dated 10 November 2005. In relation to point (i) he submitted that the ability to use a walking aid and the ability to seek directions on unfamiliar routes was not conclusive evidence that the claimant did not satisfy the criteria for an award of the lower rate of the mobility component. Leave to appeal had been granted by the legally qualified panel member on the issue of whether the tribunal gave proper weight to the opinion of the claimant's GP on her ability to walk out of doors.
8. Mr McVeigh submitted also that there appeared to be some confusion over why the claimant had problems walking outdoors in places that were familiar to her. The GP confirmed that it was due to anxiety and that she required encouragement and accompaniment. The Department in its submission had stated that the claimant herself had stated that she would be better if she had someone with her as she would feel more secure for fear of falling. The tribunal did not mention the fear of falling in the reasons for its decision. Mr McVeigh submitted that the tribunal had failed in its inquisitorial role by not seeking further evidence on the claimant's anxiety and subsequent need for encouragement and accompaniment on unfamiliar routes.
9. As regards the Department's contention that the tribunal did not rely on the incomplete medical records which predated the appeal but instead relied on the claimant's claim form and GP factual report, Mr McVeigh submitted that the tribunal had also recorded evidence from the incomplete medical records in their reasons for decision.

Reasons

10. As regards ground (i) it is quite apparent from the record of proceedings that the tribunal did explore with the claimant her walking difficulties. She confirmed that she could walk and that she went shopping in small stores to which she drove and that she felt insecure because her right leg went numb. She also confirmed that she drove herself to work across Belfast and that she could seek directions if she needed to either in a car or on foot. She travelled alone to work. There were no special arrangements made for her at work in relation to her health problems. In her DLA 580 form received in the Department on 24 May 2004 the claimant reclaimed DLA. The claimant stated in that form that she needed to have someone with her when she was out of doors. In the section asking her to describe in her own words the problems she had and the help she needed when she was outdoors she stated:

"It is better if I have someone with me. I feel more secure for fear of falling when my leg goes numb."

11. It is quite apparent to me that the tribunal accepted that the claimant did suffer from anxiety but that it was endeavouring to ascertain why the anxiety should prevent her from walking outdoors without the relevant amount of guidance or supervision. The claimant herself indicated that her wish for accompaniment was based on her fear of falling but the tribunal has also quite properly addressed a possible issue of concentration impairment. It is by no means automatic that because a person suffers from anxiety they therefore satisfy the relevant criteria. What has to be ascertained by any decision making body is whether or not the claimant cannot walk out of doors without guidance or supervision to the relevant extent. This is quite obviously what the tribunal has endeavoured to address. The GP gave no reason why the anxiety should produce such a requirement and the tribunal has therefore obviously tried to ascertain why the claimant herself thought that she needed guidance or accompaniment.
12. I consider that there was no failure of the inquisitorial role in this respect and that the tribunal was quite entitled to the conclusion which it reached. Suffering from a condition does not automatically lead to satisfaction of the statutory conditions for the lower rate of the mobility component. The tribunal appears to me to have properly addressed those statutory conditions.
13. As regards the second ground of appeal, I am not altogether sure that the tribunal did not have any records after 2002 from the GP. It has stated:

"The records available to the Tribunal did not include computerised records from 2002 onwards. The Tribunal nevertheless decided on the basis of [the claimant's] own evidence and the GP's 2004 factual report that it had sufficient evidence in order to reach a decision."

It has then related the history from the records and included amongst that is the following paragraph:

"The records show that she was at work in October 2001 but the return date is not recorded. In October 2004 she was still working."

It is clear that the claimant was advised of the papers which the tribunal had.

14. I am aware that medical records can be both computerised and uncomputerised I am not altogether sure that the uncomputerised records from 2002 were not before the tribunal. However, even working on the assumption that all post 2002 records were missing, I consider that the tribunal was entitled to reach its decision. The tribunal considered the entire medical and other evidence which was before it and that evidence included the GP's statement dated 7 July 2004 which referred to the claimant's back problems. The GP refers to low back pain being diagnosed; it would appear in December 2003. Despite that the GP expressed the opinion that the claimant could carry out all the tasks delineated at paragraph 5 of his report. He also indicated that there was no history of falls. At question 7 in that report which is phrased:

"What difficulty does the patient experience while walking on level ground with regards to:

(a) distance

(b) gait, balance …"

the GP responded – "No".

15. The claimant herself had stated at hearing that she had suffered from lower back pain "constant for years". She had indicated no sudden deterioration in her back condition.
16. The tribunal was dealing with the level of care and mobility needs. It has not disputed that the claimant had back pain. I consider, against the evidential background, that the tribunal had adequate evidence upon which to reach its decision and that there was no failure in the inquisitorial role in not seeking any further medical records. I consider there is no merit in this ground.
17. The appeal is dismissed.

(signed): Moya F Brown

Commissioner

10 February 2006