Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C13_06_07(DLA) (17 April 2007)

Decision No: C13/06-07(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 15 February 2006
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 15 February 2006 of an appeal tribunal sitting at Belfast.
2. The tribunal had dismissed the claimant's appeal against a departmental decision dated 12 September 2005. This decision was made on 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 24 October 2005. There was some minor confusion as to the effective date of the disallowance but it appears that the effective date of the disallowance was 24 October 2005 and the claimant was paid benefit up until that date. Both the Department and tribunal in disallowing the appeal relied on the medical evidence, though the tribunal also relied in part on the claimant's own evidence.
3. It found him to suffer from diabetes but to have no complication of diabetes and no peripheral vascular disease. It found that the claimant's claims of panic attacks, dizzy spells and mental illness or disability leading to requirement for supervision were not supported by the medical records. These showed:

"… a psychopathic personality, a history of drug addiction/abuse, including analgesia and a history of prison for violence and in 2002 stress-related blackout not amenable to medical treatment."

It referred further in its reasoning to the claimant's own evidence at hearing confirming no physical problems with walking, that he could ask for and follow directions, that he could go for months without one of his stress-related blackouts or headaches and that he last saw Dr P…., Consultant Neurologist in 2002.

4. The claimant appealed to a Commissioner setting out grounds of appeal on an OSSC1 form received in the Commissioners' Office on 5 July 2006. I held a hearing of the appeal which the claimant attended and which was attended by Mrs Gunning of Decision Making Services Branch, representing the Department. The written grounds of appeal were five fold:

(1) The tribunal had erred in concluding that the claimant had been awarded DLA previously based on self-assessment. He had been informed by the Department that it had sufficient medical evidence to make the award. In 2003 the benefit had been stopped and reinstated after his GP, Dr N…. sent in a report on 5 December 2003. He also submitted that the tribunal had based its decision on one report from Dr C…… and suggested that a second report be obtained perhaps from Dr N…...

(2) The tribunal had erred in stating that there was no evidence in the claimant's medical records to support his claim about falling. When he was shown his file at the tribunal hearing there were three or four records from Whiteabbey Hospital to confirm that he had attended Accident and Emergency there following a fall.

(3) The tribunal had disallowed him benefit because he had a prison record for violence. This was not true. Not being a medical condition this should not and could not have been in his medical records.

(4) The tribunal had stated that the claimant had a psychopathic personality disorder. This was incorrect. His personality disorder was sociopathic not psychopathic. This condition caused mood swings and would lead to him not being able to cope. This problem and the addiction to painkillers were indications of his need for supervision.

(5) The tribunal had erred in stating that the claimant had said he went for months without headaches or stress-related blackouts. On the contrary he had been seeking treatment for headaches for 30 years and took painkillers to cope with them. This had led to his addition, a history of overdosing on painkillers and his referral to Dr P…….

5. At hearing before me certain matters relating to the grounds became clearer. Regarding ground (1) he stated he had asked the Department to get a second opinion but the Department had declined. As regards ground (3) the claimant had told a psychiatrist that he had been in prison for violence then immediately after said he had told the psychiatrist this and it was in the psychiatrist's report. It was untrue he had just made it up. He sometimes did this after being admitted for overdoses etc. The claimant had been advised prior to the hearing before me that as certain of his grounds related to his medical records he might wish to consider bringing them to the hearing. He did not so do but informed me that he had been told there would be a fee for supplying them which he could not afford to pay.
6. As regards ground (2) he stated that his GP records only went back three or four years, anything prior to that being on paper and that his GP had told him he had only checked on the computer.
7. As regards the "psychopathic personality disorder" in ground (4), I mentioned to the claimant that, having checked my dictionary, it appeared that the terms sociopathic and psychopathic were used interchangeably. He did not comment on this save to say that he appeared to have been disallowed because he had a mental illness.
8. As regards ground (5) the claimant informed me that his statement to the tribunal, "I can go for days and days with no problems" was related to the blackouts. The headaches were different.
9. He informed me that his main problem was that there was insufficient evidence before the tribunal. It only had Dr C…… report and a second opinion should have been sought. I raised with him that the tribunal had had GP records and had relied also on those and sought his comment. He had none.
10. Mrs Gunning opposed the appeal. She submitted that the tribunal had not based any part of its decision on its conclusion that the claimant had been in prison for violence. The tribunal was merely summarising what was contained in the GP records and indicating its conclusion that they did not support the claimed care and mobility needs.
11. As regards the facts Mrs Gunning stated that her understanding was that if a person attended hospital the GP was notified. The period before the tribunal was from 2005 on and if falls took place before that they would not have been relevant to the tribunal's decision.
12. Mrs Gunning disputed that the tribunal had disallowed the claimant because he had a mental illness. It had considered all the evidence and concluded, not that he had no problems, but that his needs were not such as to satisfy the conditions for the care or mobility components. At tribunal, if the claimant wanted, he could have produced further evidence in support of his claim.
13. At this stage, almost at the end of the hearing, the claimant said that he did not know whether or not he received a letter saying he could bring further evidence to the hearing. He could only recall that the letter gave him a hearing date of 15 February.
14. I can find no merit in grounds (2), (3), (4) or (5). I do not find the claimant to be a generally reliable witness. For example, his evidence to me was contradictory. He initially told me he had never told a psychiatrist he had been in prison for violence then he said he had so told the psychiatrist. I am not therefore inclined to accept as accurate his submissions as to there being any instance of falls in his medical records. His GP specifically states there is no such history. Even if the GP had only checked the three or four years prior to his compilation of the factual report dated 4 August 2005 the three person tribunal had records from 1991 and reached the conclusion that there were no such falls. I consider there to be no merit in ground (2).
15. I also consider there to be no merit in ground (3). It is quite apparent that the claimant did tell a psychiatrist that he had been in prison for violence and that the tribunal was entitled to accept the psychiatrist's report as giving an accurate history. The claimant did not dispute this before the tribunal. In any event I consider that Mrs Gunning is correct that the tribunal was not basing its decision on whether or not the claimant had been in prison. It was summarising the medical history. I consider there to be no merit in ground (3).
16. As regards ground (4), the tribunal found the claimant's medical records to indicate that he had a psychopathic personality. I am unable to say precisely what term was used in the records but consider that the terms sociopathic and psycophathic personality are used interchangeably. Precisely which term the tribunal adopts is therefore irrelevant. There is no merit in found (4).
17. As regards ground 5, I am not prepared to conclude that the tribunal's record of proceedings is inaccurate in any substantive respect. It is not, of course, required to contain a verbatim note of the evidence. The relevant note about blackouts and headaches would, however, accord with the medical records and treatment pattern and I consider therefore that it is an accurate one. There is no merit in ground (5).
18. As regards ground (1), I am not prepared to accept that the tribunal had insufficient evidence upon which to base its decision. As Mrs Gunning says, if the claimant wished to produce further evidence he was at liberty to do so. The tribunal in any event had his medical records from 1991, which were ample to enable the tribunal to reach a decision. The claimant raised no issue at the tribunal hearing, having confirmed that he had viewed the GP records, that he wished to obtain further evidence. I consider the tribunal had ample evidence to enable it to reach a decision and was not in error of law in proceeding to do so. Even if I accepted, which I do not, that the claimant was not informed that he could bring further evidence that would not raise any fair hearing issue as the claimant made it clear at hearing having seen the medical records that he was "Happy to proceed". In any event it is more likely than not that he was informed he could bring additional evidence. He may have forgotten having received a letter to this effect as he referred to being unable to recall receiving same.
19. The decision is amply sustained by the evidence and explained by the reasons which indicate a proper application of the statutory tests, an acknowledgement that the claimant has certain health problems but a rejection of his claims as to the care and mobility needs as not arising from them. There is no indication that the claimant was denied benefit because he had a mental illness. Rather the tribunal rejected his claims as to care and mobility needs as not being in accordance with the medical evidence. The assessment of evidence is a matter for the tribunal only to be upset on appeal if it is perverse or unreasonable. It is not arguably so in this case. The appeal is dismissed.

(signed): M F Brown

Commissioner

17 April 2007