Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2008] NISSCSC C12_07_08(RP) (10 April 2008)

Decision No: C12/07-08(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 9 May 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, with the leave of the legally qualified member of the tribunal, to a Commissioner against the decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant is not entitled either to the mobility component or the care component of disability living allowance (DLA) from and including 16 May 2006.
2. Having considered the circumstances of the case I am satisfied that the appeal can be properly determined without a hearing.
3. The claimant was in receipt of the highest rate of the care component of DLA from 16 November 2004 to 15 May 2006. A renewal claim, in respect of the period from 16 May 2006 was received in the Department on 27 January 2006, indicating that the claimant had depression and anxiety. A general practitioner (GP) completed the GP factual report on 28 April 2006. On 21 May 2006 it was decided by the decision-maker that the claimant's claim should be disallowed from and including 16 May 2006. A request for a reconsideration of the decision dated 21 May 2006 was received on 1 June 2006. On 21 September 2006 the decision of 21 May 2006 was reconsidered. However it was not changed. A letter of appeal was received on 24 October 2006. As stated at paragraph 1 herein, the tribunal refused the appeal.
4. In relation to both the mobility and the care components, the tribunal gave the following composite reasons:

"1. The Claimant was previously in receipt of the higher rate of care component of Disability Living Allowance from 16.11.2004 – 15.05.2006. A renewal claim, in respect of the period from 16.05.2006 was received by the Department on 27.01.2006 indicating that [the claimant] had depression and anxiety. Dr F completed a General Practitioner's factual report on 28.04.2006; on 21.05.2006 [the claimant's] claim was disallowed from and including 16.05.2006.

2. The Claimant through his Representative asked the Tribunal to look at low rate mobility and low rate care. The Claimant in his evidence stated that he was able to walk but needs to be accompanied when walking outdoors. The question therefore for the Tribunal is whether he requires guidance or supervision from another person for most of the time when walking outdoors on unfamiliar routes. The Claimant states that he needs to be accompanied when walking outdoors because of anxiety and panic. This is not supported by the evidence from Dr F. The Claimant also stated that he gets "mixed up" when he is out and that he needs someone with him in order not to get lost. The Claimant states that this happens a lot of times and that as a consequence he is not able to go shopping. The Tribunal do not accept that this is supported by the evidence.

3. The Tribunal also carried out a review of the medical notes and records available to it. It noted among the records a letter from Dr H to Dr McC in which it was recorded that the Claimant himself reported that his mood had improved and that he attributed this in part to the fact that he moved out of his parents' home and into his own flat. He indicates that he cooks for himself and that his appetite is good. There is a further letter from Dr H to Dr McC dated 07.03.2006. In this letter on examination Dr H found [the claimant's] mood to be euthymic. "There was no evidence of distress or anxiety. There was no psycosis [sic] and certainly no thoughts of self harm". The notes also record the General Practitioner's view that the Claimant "is not ready to stop drinking".

4. At the Representative's request the Tribunal also considered low rate care on behalf of the Claimant. The Tribunal noted that the Claimant had never been admitted to the Addictions Unit. It was noted that he had been referred to T.C. Hospital but couldn't finish the six week course. It was noted that the Community Psychiatric Nurse did call out to see the Claimant.

5. In the Claimant's self assessment form the Claimant indicated that he requires attention/encouragement with most aspects of his daily care during the day and night. He also requires constant supervision as a result of his condition. He also requires some help with the preparation of a cooked main meal. At the hearing today the Claimant's Representative indicated that their claim was limited to an appeal in relation to the low rate care.

6. The Tribunal noted the General Practitioner's factual report dated 28.04.2006. In that report Dr F stated that the Claimant had depression and alcohol dependence syndrome since May 2004. The General Practitioner further indicated that the Claimant can administer his own medication and be safely left unsupervised by day and by night. He further stated that the Claimant was not prone to self harm or self neglect stating that the Claimant just drinks excessively. The Tribunal accepts that the Claimant has alcohol dependence syndrome and accepts the General Practitioner's diagnosis in this regard. The Tribunal also accepts that the Claimant suffers from depression. The Tribunal note however the opinion of Dr F that the Claimant is not so severely disabled mentally and his ability to look after himself was compromised. The Tribunal also notes the entry in the medical notes and records that there are currently no suicidal tendencies. The Tribunal also note the letter from Dr H to the General Practitioner dated 07.03.2006 in which it was recorded "there was no psycosis [sic] and certainly no thoughts of self harm". The Tribunal also note Dr F view that the Claimant does not reasonably require prompting, motivation or encouragement to attend to his personal care needs.

7. The Claimant in his evidence states that he takes his own medication though his sister would sometimes take it off him. He states his sister would call once per day and stays a couple of hours tidying up, cleaning and making the bed. The Claimant states that she does this every day and sometimes brings a meal already prepared to the house. The Tribunal note that the Claimant's sister lives approximately 6 or 7 miles away from the Claimant's home.

8. The Tribunal accepts as a general principle that the sister does call from time to time. The Tribunal however do not accept that the level of attention is as great as that claimed by the Claimant. The Tribunal specifically find that the level of attention provided by the Claimant's sister does not amount to attention … for a significant portion of the day in connection with the Claimant's bodily functions. The Tribunal also note the letter from Dr H to Dr McC in which it is recorded that the Claimant spends several hours per day caring for his mother and that his sister also helps. He stated to Dr H that his mood is fair and he is happy to be in a position where he can spend so much time looking after his mother.

9. The Tribunal further finds that there are no physical symptoms or manifestations suffered by the Claimant arising from his alcohol dependence. The Tribunal further find that at present the Claimant has chosen to continue drinking and that in the words of his General Practitioner "is not ready to stop drinking".

10. In considering all of the evidence and for the reasons set out above the Tribunal find that the Claimant is not entitled to the care component or the mobility component of Disability Living Allowance and accordingly the appeal is allowed."

5. A late application for leave to appeal was accepted by the legally qualified member on 19 September 2007. On the same date leave to appeal was granted. However, no specific point of law was set out by the legally qualified member.
6. The claimant, who is represented by Ms G, has made the following contentions:

(i) The doctor (Dr F) who completed the GP factual report was not in a position to know about the claimant's suicidal tendencies unless she was able to obtain the claimant's medical notes from his regular GP (Dr McC) or psychiatry, who could have confirmed these tendencies.

(ii) The claimant's thoughts and moods are not good and his condition has left him in need of help and this has been supported by psychiatry, the addiction clinic and the Board doctor report.

(iii) The claimant's appetite is not good and he does not cook for himself.

7. Mr Hinton of Decision Making Services, on behalf of the Department, has made the following submissions:

(i) It is difficult to see how Dr F could have been able to complete the factual report without accessing the claimant's notes. The notes would in normal circumstances include various reports and updates from the consultant psychiatrist. In any event, the tribunal did not confine its deliberations on the claimant's suicidal tendencies to Dr F's factual report alone as the tribunal's statement of reasons refers to relevant entries in the medical notes and records indicating that there were currently no suicidal tendencies. The statement of reasons also refers to a letter from a Dr H to the GP, dated 7 March 2006, in which it was recorded that "there was no psycosis [sic] and certainly no thoughts of self harm". Accordingly the claimant's medical history must have been known to Dr F. In addition medical evidence led the tribunal to the entirely sustainable conclusion that the claimant was not at risk from self-harm or suicide.

(ii) Whilst the tribunal accepted that the claimant suffered from depression and alcohol dependency, it concluded that the evidence presented before it did not support an award of either low rate mobility or low rate care components. The tribunal was entitled to reach this conclusion, bearing in mind that the weighing of evidence and the weight that a tribunal places on such evidence is a matter for the tribunal. Accordingly, the tribunal's conclusion in this regard is sustainable on the evidence and, therefore, there is no error in law.

(iii) The tribunal's statement of reasons includes a note that it was recorded in a letter from Dr H to Dr McC that [the claimant] "… cooks for himself and that his appetite is good …". Accordingly the claimant's statement that he does not cook for himself arises from personal choice and not from any physical or mental disablement. The tribunal has preferred the evidence presented in the medical notes and records to that in the claimant's self-assessment form, which was to the contrary, and his evidence at hearing, which was also to the contrary. The tribunal was entitled so to do and, therefore, there is no error in law.

8. In my view the decision of the tribunal was not based solely on the report of Dr F. In particular, at paragraph 6 of the statement of reasons in relation to the care component, the tribunal has specifically stated as follows:

"… The Tribunal also notes the entry in the medical notes and records that there are currently no suicidal tendencies. The Tribunal also note the letter from Dr H to the General Practitioner dated 07.03.2006 in which it was recorded "there was no psycosis [sic] and certainly no thoughts of self harm". …"

Accordingly, I conclude that there is no error in law in relation to how the tribunal dealt with the medical evidence.

9. There is no doubt that the claimant's contentions were supported by his consultant, Dr H. However, the tribunal, as it was entitled to do, considered all the relevant evidence and reached a sustainable conclusion.
10. The tribunal clearly considered the cooking test and the evidence from the notes that he could cook for himself. Again the tribunal was entitled to come to this conclusion on the evidence.
11. It must also be borne in mind that, in this and every similar case, 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.

12. 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.
13. Accordingly, in light of my conclusions, I am satisfied that the decision of the tribunal is not erroneous in point of law. Therefore I dismiss this appeal and affirm the decision of the appeal tribunal.

(signed): J A H Martin QC

Chief Commissioner

10 April 2008