Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: C32/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 16 September 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case begins as an application by the claimant for leave to appeal against a decision dated 16 September 2005 of an appeal tribunal sitting at Enniskillen. That tribunal had disallowed the claimant's appeal against a Departmental decision that the claimant was not entitled to disability living allowance (DLA) from and including 14 December 2004.
2. The claimant sought leave to appeal on an OSSC1 form received in the Office of the Social Security Commissioners on 1 March 2006. I held a hearing of the application which the claimant attended and at which he was represented by Mr McVeigh of the Citizens Advice Bureau. Mr Kirk of Decision Making Services Branch attended to represent the Department. 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 that the tribunal had not given adequate reasons for its decision. Mr McVeigh both in his written submissions and at hearing submitted that it was unclear how the tribunal had viewed the evidence of the claimant's social worker and the claimant himself, whether the tribunal had considered the main meal test conditions, how it had dealt with the lower rate of the mobility component and whether it had considered the claimant's alcoholism problem and how it had dealt with what, in Mr McVeigh's submission, were contradictions between the GP factual report dated 16 February 2005 and the GP records in relation to self-harm. The records were handed in by Mr McVeigh and viewed by both Mr Kirk and myself.
4. Mr Kirk opposed the application. He submitted, in his written submissions and at hearing that the reasons were adequate. He submitted, with regard to the care component that the tribunal had clearly relied on the evidence of the claimant's GP who had indicated that he was not at risk from self-harm or self-neglect and could administer his own medication. It had reasoned that, while there might be some letting go of his personal care whilst the claimant abused alcohol, he still retained adequate self-care. He submitted that these conclusions were sustainable on the evidence. Mr Kirk was of the view that the evidence of the social worker and that of the claimant's GP notes and records was contradictory and the tribunal had clearly preferred the medical evidence. As regards the mobility component Mr Kirk submitted that the tribunal had relied, as it was entitled to do, on the medical evidence. It had accepted that the claimant had medical problems but considered that these did not lead to care or mobility needs such as to satisfy the statutory conditions. It had recorded:

"The medical evidence would not support a need to be accompanied."

5. I grant leave. With the consent of both representatives I treat the application as an appeal and deal with any question arising thereon as if it arose on appeal. I begin by setting out the general approach of a Commissioner to conclusions of fact by a lower tribunal. This is long term settled law and the general principles apply to appellate courts also. An appeal to a Commissioner is on a point of law only. A tribunal does not err in reaching its conclusions of fact unless they are:

"… both demonstrably – not merely arguably – unfounded or erroneous and capable of having affected the outcome. If this standard is reached, but only then, decisions about fact acquire a legal dimension."

(Krasniqi v Secretary of State for the Home Department [2006] EWCA Civ 391 (paragraph 17) commenting on an appeal to the Asylum and Immigration Tribunal which also lies solely on a point of law). I would refer also to the decision of the Court of Appeal in Northern Ireland in the case of Quinn v Department for Social Development where at paragraph 29 Kerr LCJ, delivering the judgment of the Court, referred, with approval, to the remarks of Carswell LCJ in the case of Chief Constable of the RUC v Sergeant A [2000] NI 261 and 273f as follows:

"A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless –

(a) there is no or no sufficient evidence to found them, which may occur when the influence or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR697 at 699, per Lord Sutherland); 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: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36."

6. Of course where a claimant is trying to establish entitlement to a benefit he must show on the balance of probabilities that he satisfies the statutory criteria. A tribunal does not have to accept evidence which it considers unreliable. If the quality of the claimant's evidence is such that it cannot be relied on the tribunal is entitled to conclude that he has failed to establish entitlement. I have dealt with this matter in earlier decisions C1/98(AA) and C7/98(DLA).
7. Applying the general principles set out above I consider that the tribunal cannot be said to have erred in its factual conclusions. It had the opportunity to assess the claimant's written and oral evidence and it reasonably exercised its judgment in so doing. It has reached the view (and having perused the medical evidence including the GP notes I consider it was entitled to its view) that the medical evidence did not support the claimant's contention that he fulfilled the statutory criteria. It has therefore disallowed the appeal.
8. As regards the adequacy of the reasons, the tribunal has clearly considered the evidence of addiction and mental health problems and difficulties with balance. It has clearly considered the evidence of the social worker and evidence of previous episodes of self-harm. As regards the self-harm the tribunal has clearly considered whether there was any need for care or mobility assistance in connection with this at the date of decision under appeal to it. It has relied on the medical evidence in relation to this and in particular on the GP factual report. The GP has indicated that the claimant can safely and unaided get in and out of bed, dress and undress, rise from sitting to standing, use stairs, walk indoors, peel and chop vegetables, use a cooker, use taps, use pots and pans, that he is not aware of any need for attention or supervision in walking on unfamiliar routes, that there is no documented history of falls and that he can administer his own medication and that his mental state is not such that he requires prompting, motivation or encouragement to avoid the risk of self-harm or self-neglect. He has also indicated that the claimant is incapable of regular employment and that his alcohol dependence is complicated by depression and by the claimant's pre-morbid personality and that when drinking the claimant would be unable to perform activities of daily living to a satisfactory degree.
9. The tribunal has set out its impression of the claimant which acknowledges that he has a level of depression though not so great as claimed and that he is an intelligent man who remains clear in thought pattern but who does abuse alcohol. It accepts that there may be periods when abusing alcohol when there may be some letting go of personal care but in its judgment overall the claimant can manage adequately and does not require accompaniment when walking. Essentially this is the tribunal's view of the fact situation and I consider it to be neither perverse nor unreasonable.
10. I do not consider that the tribunal rejected the social worker's report. That report refers to the claimant having inadequate coping techniques, depression and alcohol misuse which negatively impact upon his lifestyle to the point that he neglects himself and on occasion self-harms. This evidence is not phrased in terms which of themselves would establish entitlement to DLA at any rate. The only possible contradiction with the medical evidence is in relation to self-harm but this is in my view, more apparent than real. There has been self-harm in the past but the tribunal had to consider risk at the date of the Department's decision and it has clearly done so. The social worker's evidence appears to refer to past incidents. (From my perusal of the GP notes at least one may have related to problems with neighbours). The social worker refers to support and structure being provided by the day care facility which the claimant attends five days per week. That is far from establishing the need for attention in connection with bodily functions, assistance with mobility, supervision to prevent harm or help to prepare and cook a main meal which the statutory provisions require before an award can be made. The tribunal alludes to this in its reasoning when it says that it is assessing the claimant "against the criteria for this particular benefit", though it appreciates that he does have medical problems.
11. I have been unable to trace any discrepancy between the GP factual report and the GP records and the ability to self-medicate would be contra-indicative of a risk of self-harm in so far as related to over-dosing medication.
12. As regards the main meal test, same is not specifically referred to in the reasons, but it is apparent that, relying on its assessment of the claimant's capacity and the medical evidence, the tribunal concluded that no assistance was required to prepare and cook a main meal. As regards the lower rate mobility component the tribunal has clearly set out its conclusions of fact. They are based on and sustainable on the medical evidence. The reasons are adequate to explain the decision in relation to this.
13. I can find no indication that the tribunal ignored the claimant's alcohol related problems. Rather it seems to have taken them into consideration. It does indicate that when abusing alcohol there may be some "letting go" of his personal care but that "overall we feel he can manage adequately". I have no medical expertise but this would appear to be in line with general medical knowledge on the effects of alcohol abuse on functional ability summarised in the decision of the Tribunal of Commissioners in Great Britain in R(DLA) 6/06. That background was not of course part of the evidence in this case and individual cases may differ. However the tribunal's view of the intermittency of any needs arising therefrom and of the overall situation was certainly sustainable on the evidence in this case.
14. I am in agreement with Mr Kirk that the reasons adequately explain why the tribunal did not consider the claimant to satisfy the statutory conditions for an award of the benefit. In summary, it acknowledged that he had problems but, relying on the medical evidence, found any relevant needs to be intermittent only and that overall there were no needs such as to satisfy the statutory conditions. The appeal is dismissed.

(signed): M F Brown

Commissioner

15 February 2007