Northern Ireland - Social Security and Child Support Commissioners' Decisions

BB-v- Department for Social Development (DLA) [2010] NICom 18

Decision No:  C49/09-10(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 23 July 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal, leave having been granted by the legally qualified member (LQM) of the tribunal, against the decision of the tribunal affirming a decision-maker’s decision, in relation to a renewal claim, to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 17 February 2009.

 

2.     A renewal claim was made by the claimant in respect of the period from 17 February 2009 in the Department on 29 October 2008, indicating that the claimant had Hartman’s procedure, depression, anxiety, fatigue and an ileostomy bag.  After a report was completed by the claimant’s general practitioner, it was decided on 5 December 2008 that the claimant’s claim should be disallowed from and including 17 February 2009.  This decision was disputed by telephone call.  Further information which had been omitted from the original claim form was received from the claimant on 19 December 2008.  On 26 January 2009 the claimant was examined by an examining medical practitioner (EMP).  On 4 February 2009 the decision of 5 December 2008 was reconsidered.  However, it was not changed.  Thereupon the claimant appealed to a tribunal.

 

3.     On 23 July 2009 the tribunal, apparently unanimously, affirmed this decision.

 

4.     The LQM, who was the chairman of the tribunal, made the following record of the tribunal’s proceedings:

 

                   “1.        DOCUMENTS CONSIDERED:

 

                   All papers before Tribunal.

 

                   Medical notes and records (from 2003).

 

                   Submission to Appeal Tribunal from I Okolo.

 

2.                  RECORD OF PROCEEDINGS [including evidence considered and details of the adjournment application (if any)]

 

No representative but (the claimant) wanted to proceed.

 

Dr Turner

 

3.         Major operations last one in April.  Reversal.  Before that August 2008.  Before that end of 2006.  Bowel problem.  Very difficult to manage colostomy bag.  Lot of leakages.  Now left with hernia.  Drinking caused problems at the time of changing.  I am an alcoholic.  Mostly I would be cleaning bag myself.  Sometimes 3 or 4 times per day.  Dealt with washing myself.  If I hadn’t been on alcohol would have managed better.  Frequently changed bag.  Alcohol for a few years now.  In and out of hospitals for years.  Stayed off for about a year.  Frequently drinks/every day.  Depression and stress.  Ex military ex police.  British Legion helped me here combat support.  Right leg numbness/pins and needles sometimes.  Sometimes legs give way.  Have stumbled.  General ill health and very depressed.  Can’t motivate myself.

 

Walk – Can walk.  Can’t walk very far and stumble.  Walked 75 yards or 50 yards.  Get tired.  Walk again.  Get tired out by getting stiff.  Minutes then.   Walk on own.  No problems with going out.  Stand for support.  Would go down town for a drink to see mates.

 

Can get out of bed ok.  Have to get into bath.  Would bath or shower.  Don’t need help with bathing.  Use a lift up to apartment.  Can dress myself.  I do take medication regularly.  Meals and Wheels – finished after second operation 8 or 9 weeks lasted.  Wouldn’t eat a lot.  Get a taxi into town to eat.  Would make meal if I had to.  Can undress.  Sleep problems sometimes at night.  Weird dreams.  Sleep alright.  Put Occupational Therapist assessment to client “they were going to get me something for bath and emergency button for door.”  Didn’t get them.

 

Live on my own.  No one calls.  Lot of baggage alcohol and depression – everyday.  I don’t know why I could - so much from past.  2 bottles of vodka a day sometimes.  Examining Medical Practitioner – I thought he wasn’t very thorough.  Went upstairs with him.  Never spoke.  Asked various questions.”

 

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

 

“As far as care is concerned in his direct evidence this very pleasant gentleman said he could get up out of bed.  Would bath and shower and didn’t need help with this.  He used a lift to get to his apartment.  He could dress himself and take his own medication.  He would eat out a lot and get a taxi to town.  He also said he would make a main meal if he had to.  He could undress himself.  He remarked that he had weird dreams at night but that his sleep was alright.  He was on his own and referred to problems with alcoholism and depression.  He would basically drink every day – sometimes 2 bottles of vodka a day.  He had problems dealing with the past.  As far as ability to self care was concerned the doctor simply recorded “no record” in the appropriate portion of his form.  The Examining Medical Practitioner after a full clinical examination and discussion with (the claimant) formed the opinion that the appellant could self care without help.  In March 2009, which was just after the review date, (the claimant) was reviewed by Mr Armstrong FRCS who reported that in general terms (the claimant) was keeping well and had stopped drinking since his last admission.

 

Looking at all of the evidence the tribunal accepted the appellant has been unwell and sometimes seriously over the past number of years.  The tribunal accepts that the claimant has alcohol problems related to depression or vice versa but despite this he seems to deal with all of his own care needs.  This is quite apparent from the direct evidence from the claimant in addition to the opinion of the Examining Medical Practitioner.  Again the Tribunal acknowledged the effect of the operations which (the claimant) has had to experience but at the time of the renewal claim he was awaiting for a reversal to be done and this was completed in April 09.  The tribunal accept that he was obviously unwell at this time but there is no evidence before the tribunal to suggest that he could not deal with this own care needs at the time of his renewal claim.  In fact according to his medical notes he was assessed on 22 October 2008 by the OTS (J Black) and it was confirmed at that stage that the appellant was independent in all functional activities including mobility, transfers, personal care and domestic activities of daily living and as a result of his assessment no O.T. intervention was required.  This evidence along with the direct evidence of the claimant and the opinion of the Examining Medical Practitioner convinces the tribunal that at the time of the renewal claim (the claimant) did not require frequent attention from another person during the day in connection with his bodily functions nor did he require constant supervision from another person to prevent substantial danger to himself or others.  Nor according to his own evidence had he any night time requirements such as requiring another person to be awake for a prolonged period or frequent intervals to watch over him to avoid substantial danger to himself.  On this basis therefore the appeal in respect of high rate and middle rate care must fail.  As far as low rate care (main meal) test (the claimant) in his own direct evidence said that he could make a meal if he had to.  The Examining Medical Practitioner believes that he has no problems making a meal and the O.T. assessment does not refer to any difficulties with making food or a main meal.  Also according to all the evidence the appellant does not require help in connection with his bodily functions whether during one period or a number of periods and therefore the appellant does not satisfy the requirements of low rate care (both meal and attention) and therefore the appeal in respect of low rate care must also fail.”

 

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

 

                   “Mobility

 

In his direct evidence this very pleasant gentleman said he could walk.  He did say however that he couldn’t walk very far and would stumble.  He said he could walk 50 to 75 yards.  He would then get tired and would stop and then walk again.  He would get tired and his leg would get stiff.  In his application form the appellant said that he could walk only 10 or 20 yards before onset of severe discomfort in a slow and poor manner.  The appellant certainly did not give this evidence in direct form at the tribunal.  His own General Practitioner did not record any problems with walking and the Examining Medical Practitioner after full clinical examination formed the opinion that the appellant could walk 150 metres before onset of severe discomfort.  In his application form the reason for not being able to walk the appellant said was due to illness and fatigue and he referred to the bag he was carrying as a result of his recent operation.  There is no doubt in the mind of the Tribunal that this gentleman has had serious physical and mental health problems and hospitalisation.  However in order to qualify for high rate mobility the appellant must be unable to walk or virtually unable to walk.

 

In assessing this the tribunal must have regard to distance, speed, time and manner of the mobility without severe discomfort.  In his direct evidence the appellant says, in contravention to what he states in the application form, that he can walk 50 to 75 yards before stopping and then continuing.  The Examining Medical Practitioner after full clinical examination formed the opinion that he could walk 150 yards.  Even if the tribunal accept the appellant’s evidence it is clear that the appellant can walk and that he is not virtually unable to walk.  In the Tribunal’s view his own evidence takes him outside this requirement of the legislative test and therefore the appeal in respect of high rate mobility must fail.

 

Again in his own evidence as far as low rate mobility is concerned the appellant quite clearly says that he walks on his own and that he has no problems going out.  He said that he would get a taxi to go to town for a drink.  He said in his form that he needed help and support but again in his direct evidence this was not mentioned.  The General Practitioner remarked “not recorded” in his General Practitioner report (awareness) and the Examining Medical Practitioner after a full clinical examination formed the opinion that no supervision or guidance was required outdoors.  After assessing the evidence and in particular the direct evidence of the claimant the tribunal agree with the opinion of the Examining Medical Practitioner and conclude the appellant does not require supervision or guidance outdoors in unfamiliar places and therefore the appeal in respect of low rate mobility must also fail.”

 

7.     Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

 

8.     The claimant is represented by Mr Ike Okolo, the Royal British Legion.  He did not attend at the hearing before the tribunal but he was stated in the appropriate part of the record of proceedings as being the appellant’s representative at that hearing.  The Department is represented by Mr Jim Hinton of Decision Making Services.

 

9.     Mr Okolo raised various grounds of appeal and, in particular, made the following point.  He submitted that whilst the tribunal had the right to prefer the evidence of the EMP, it also had before it a submission from Mr Okolo the representative and this included a report from the Combat Stress Regional Welfare Officer on the mental condition of the claimant.  However, he submitted that the tribunal failed to give reasons why it accepted the evidence of the EMP rather than the evidence presented on behalf of the appellant.  Mr Okolo cited decision R(M)1/93 – a decision of a Great Britain Commissioner – in support of his contention.  In this decision Mr Commissioner Skinner held that the tribunal in that case had erred in law through inadequacy of reasons.  In particular it failed to state, in relation to the issue of conflicting medical opinions, why it preferred one to the other.  In addition, where the medical evidence presented on behalf of the claimant has been rejected, the tribunal should state its reasons, albeit briefly for the rejection.

 

10.   Mr Hinton supports the appeal on this particular ground.  The following points were made by Mr Hinton.

 

11.   The tribunal in its statement of reasons has referred to the claimant’s evidence at the hearing, the evidence contained in the EMP’s report and the evidence of the OTS (which I presume stands for ‘Occupational Therapy Services’) contained in the medical notes to decide the claimant’s entitlement.  The tribunal also referred to the submission from Mr Okolo.  However, it is noteworthy that the tribunal does not refer to the submission in the statement of reasons or indicate how it dealt with this evidence/submissions.  Mr Okolo in his submission referred to two reports, one by a social worker/counsellor and another by a regional welfare officer.  The report from the social worker referred to the claimant receiving ongoing support in relation to trauma and depression.  It referred to restrictions on the claimant’s ability to carry out everyday tasks, leading to a recurrence of his depression.  There also was a reference to the claimant’s fragile mental health and its effect on his ability to motivate himself.  The welfare officer’s report referred to severe bouts of depression, leading to prolonged periods of isolation and a lack of social contact.

 

12.   Mr Hinton has contended that the reports referred to in the previous paragraph, along with the submission from Mr Okolo, contained information that was potentially relevant to the issues that have to be decided in this case.  The reason for this is that the reports deal with matters such as the claimant’s poor mental and physical health which could have affected his ability to carry out everyday tasks.  Mr Hinton made the further point that it might well have been the case that the tribunal did not ascribe any weight to these documents.  However in that case, he submitted that the tribunal ought to have specifically stated why it did not.

 

13.   As Mr Hinton pointed out, Mr Commissioner Mullan in decision C16/08-09(DLA) has stated at paragraph 54:

 

“Nonetheless there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

 

14.   In my view both Mr Okolo and Mr Hinton are correct in their submissions.  The tribunal had a duty to refer to the reports mentioned above and ought to have dealt specifically with the information in those reports.  It does not mean that the tribunal ought to have accepted the contents of those reports.  Nevertheless it was required to deal with the issues in the reports.  Failure so to do in my view renders the tribunal’s decision erroneous in law.

 

15.   Mr Okolo raised other points.  In light of my decision on what I consider to be the main issue these have become somewhat academic.  In the circumstances I do not consider it necessary to deal with them.  Suffice to say it seems to me unlikely that the further points are meritorious.

 

16.   Accordingly, I conclude that the tribunal’s decision in this case is erroneous in point of law for the reasons set out at paragraph 14.  Therefore, I allow the appeal and set aside the tribunal’s decision.  Consequently I refer the matter back to a differently constituted tribunal for a rehearing.  However, the fact that this appeal has been allowed should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

10 March 2010