Northern Ireland - Social Security and Child Support Commissioners' Decisions

WW-v-Department for Social Development (DLA) [2012] NICom 279

 

 

Decision No:  C66/11-12(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 8 March 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    This is an application for leave to appeal from the tribunal sitting at Downpatrick on 8 March 2011.

 

2.    An oral hearing of the application has been requested but I consider that the application can properly be determined without a hearing.

 

3.    I dismiss the appeal for the reasons which I set out below, having granted leave to appeal.

 

REASONS

 

Background

 

4.    The applicant had previously been awarded the low rate of the mobility component and the high rate of the care component of Disability Living Allowance (DLA) from 2 November 2000 to 1 November 2003.  On a renewal claim, he was awarded the low rate of the mobility component and the middle rate of the care component from 2 November 2003 to 1 November 2009.  He made a further renewal claim which was disallowed on 19 June 2009 from and including 2 November 2009.

 

5.    The applicant appealed to a tribunal.  The tribunal sitting at Downpatrick on 8 February 2010 disallowed the appeal.

 

6.    A further hearing of the appeal took place on 8 March 2011 with a differently constituted panel.  This time the applicant was represented by Mr Derek McGregor of Down District Citizens Advice Bureau.  However, this tribunal also disallowed the appeal.

 

7.    On 15 March 2011, the applicant requested a written statement of reasons from the tribunal.  This was issued on 8 July 2011.  The applicant applied for leave to appeal to the Social Security Commissioner on 2 August 2011.  His application was refused on 16 August 2011 and the decision was notified to him on 26 August 2011.

 

8.    On 7 September 2011 the applicant sought leave to appeal directly from the Social Security Commissioner.

 

Submissions

 

9.    The applicant’s submission is the tribunal recorded his evidence incorrectly.  On this basis he did not receive a fair hearing and wanted the tribunal decision set aside.

 

10.   On 12 October 2011, Mr McGregor of Down District Citizens Advice Bureau wrote to confirm that he would also represent the applicant in his application to the Commissioner.  On 25 October 2011 he was invited to expand on the grounds of appeal but did not respond.

 

11.   The Department was then invited to make observations on the application for leave to appeal.  Mrs Hulbert for the Department submitted the applicant did not indicate what evidence had been wrongly recorded, and submitted that there was no obligation for a tribunal to record verbatim what occurred at a tribunal.

 

12.   She further made the point, however, that the tribunal did not refer expressly to the content of a written submission by Mr McGregor which had been provided to the tribunal.  Referring to C14/00-01(DLA) she suggested that it might be an error of law for the tribunal not to have referred to it.

 

13.   Mr McGregor was invited to make observations on the submission from Mrs Hulbert but did not reply.

 

Assessment

 

14.   Turing first to the applicant’s ground of application for leave to appeal; there is nothing before me by way of submission which would identify any respect in which the applicant’s evidence has not been recorded correctly.  His representative was given an opportunity to elaborate or identify further grounds and has not done so.  He does not establish an arguable case of error of law on this point.

 

15.   Mrs Hulbert, however, observes that the tribunal’s evident failure to deal with the written submission of the representative, Mr McGregor, may be in error of law.  I consider that this submission gives rise to an arguable case that the appeal tribunal has erred in law.  I therefore grant leave to appeal and proceed to deal with this point.

 

16.   I have considered the content of the submission from Mr McGregor which was before the tribunal.  This consisted of a statement of the factual background together with supporting medical evidence, and read:

 

“FACTUAL BACKGROUND

 

[The applicant] is 46 years old.  He has a medically [sic] history of depression, an alcohol drinking problem, heavy smoking, drug misuse and acute back pain.  [The applicant] cannot read or write and will be accompanied by his partner [CR].

 

[The applicant] has been referred by his GP to a Psychiatrist as he has been suffering panic attacks that have been caused by events in [the applicant’s] past.  He has a history of self-harm with attempts at self-stabbing.

 

Included with this submittal [sic] is a letter from Dr.L, [the applicant’s] GP which states that his client suffers from “depression and anxiety” and a medical history from the Mental Health Team at Down and District Trust.  Although both of these are dated at the latter end of 2010, they do give history of [the applicant’s] medical problems.

 

GROUNDS OF APPEAL

 

[The applicant] is appealing the decision taken on 19/06/2009 not to award him DLA.

 

Mobility Component

 

[The applicant] claims that due to his back pain, depression and anxiety including agrophobia [sic], he needs constant guidance and supervision when outdoors.  He suffers from panic attacks in crowded places.

 

Care Component

 

[The applicant] claims that he cannot cook as, in the past; he has nearly “burnt the house down” as he had forgotten that he switched the cooker on.  He states that he never does any cooking for this reason.

 

[The applicant] claims that he needs substantial help and supervision as his alcohol dependence and severe anxiety attacks means that he feels very dependant on his partner for care (see attached letter from Dr L dated 08/07/2009).

 

Conclusion

 

[The applicant’s] appeal is based on the guidance and supervision that he needs in relation to his mobility needs and the supervision and care needs that he has.  [The applicant] was receiving DLA LRM and MRC up to 01/11/2009.  In his letter dated 08/07/2009, Dr.L states that “his condition has deteriorated since his last DLA review” and [the applicant] appeals that he be awarded DLA”.

 

17.   The applicant has signed the document to confirm that “The above written submission is a true and accurate account of my appeal case”.  However, there is no explanation as to how that fact squares with the statement contained in the submission that “[the applicant] cannot read and write”.  I would have anticipated a further statement to the effect that it has been read to the applicant and that he understands it.

 

18.   The main point advanced by Mrs Hulbert is that C14/00-01(DLA) suggests that the failure of the tribunal to refer expressly to Mr McGregor’s submission, in terms of accepting or rejecting any evidence within it, is an error of law.  However, the facts of that case were somewhat different.  In C14/00-01(DLA) the representative and the claimant each advanced documents to the tribunal, apparently containing mutually inconsistent submissions (see paragraphs 23-24).  The tribunal in that case addressed the representative’s submission document, but appeared not to take the claimant’s document into account.

 

19.   In this case, the submission was that of the representative alone, who attended the hearing along with the applicant.  Apart from the medical evidence in the form of Dr L’s letters and the mental health team assessment, the representative’s submission amounted to simply that – a submission – and did not amount to evidence.  In C14/00-01(DLA) elements of the written submission directly from the claimant had the character of evidence.

 

20.   The mischief which the former Chief Commissioner in C14/00-01(DLA) was keen to avoid was that the claimant might reasonably be under the impression that the relevant document (containing evidence and assertions, as well as legal submissions) had not been taken into account when the tribunal came to its decision.  I therefore need to consider whether such an impression might arise in the present case from the appeal tribunal’s treatment of the submission.

 

21.   Firstly, I would observe that there is nothing mentioned in the section of the submission entitled “Factual Background” that is not evident from the material before the tribunal in the form of the general practitioner (GP) records and the oral evidence of the applicant.  This may have been a helpful succinct summary of the applicant’s medical conditions, but it added nothing to the evidence before the appeal tribunal.

 

22.   Secondly, the “Grounds of Appeal” section of the submission is a succinct summary of the applicant’s contentions in relation to his care and mobility needs.  It stated that the applicant sought mobility component based on back pain, depression, anxiety, and agoraphobia and panic attacks.  It further stated that he sought care component on the basis that he cannot cook.  He claims a need for substantial help and supervision due to alcohol dependence and severe anxiety attacks which mean that he feels very dependent on his partner for care.

 

23.   It seems clear from the record of the proceedings and the statement of reasons that the tribunal was well aware of the applicant’s medical history.  The tribunal dealt with the issue of back pain.  In this regard it was put to him that his use of only 40 co-codamol tablets in six months appeared inconsistent with his claims for the severity of his condition.  The tribunal also considered that the lack of orthopaedic referral or occupational therapy referral was indicative of a less severe condition than claimed.

 

24.   The applicant’s depression was discussed and it was put to him that he had been discharged by psychiatry in July 2009.  The response was “Things were not too bad with me then”.  The decision appealed was made in June 2009 for a renewal date of 2 November 2009, and therefore his mental state around the time of the renewal decision was relatively good.  Again this point is noted by the tribunal.

 

25.   In relation to his ability to go out of doors the applicant indicated that he could go to the supermarket when it was not too crowded, but could not get on a bus.  He would go places by taxi.  He was asked how he would manage in a strange place.  He said that he would get into trouble and be arrested by police.  He was asked about a report by the GP that his partner had severe agoraphobia resulting in him looking after the children.  He offered no reply.  Therefore this aspect of his case was made to the tribunal, although rejected.

 

26.   When asked about alcohol, the applicant indicated that he would have consumed alcohol in the morning in the bedroom.  He would not have eaten, and his partner would refuse to help him because of his drinking.  He would phone to have more drink delivered.  He would wet the bed and had rubber sheets to protect the mattress.  However, the medical records indicated that the applicant had no alcohol in May 2009, and that by June 2010 he had not consumed alcohol for a year.  This was relevant to the issue of attention or supervision needs and to the cooking test.  At the dates which concerned the tribunal, it expressly found that “at the period of the decision (he) had been off drink for a few months and was thankfully on the road to recovery”.  This was a significant finding in terms of the stated need for attention and supervision and for the “cooking test”.

 

27.   On the basis of the record of proceedings and the statement of reasons, I consider that the appeal tribunal has dealt with all the issues raised in the submission of Mr McGregor.

 

28.   For completeness, there is a need to consider the medical evidence attached to the submission.  I first note Dr L’s letter dated 20 October 2010.  In this he states that the applicant suffers from depression and anxiety including agoraphobia.  He suffers from panic attacks in crowded places and receives a lot of supervision from his partner.  The letter of Dr L. dated 8 July 2009, in which he refers to deterioration in his condition since the applicant’s “last DLA review”, is also referred to in the submission.

 

29.   The other letter attached is the medical history from the mental health team.  This confirms that the applicant had a previous history of experiencing sexual abuse as a child, attempted suicide, hospitalisation, drink and drug abuse and that he had been discharged by psychiatry in 2009.  He was referred back to mental health services in December 2010 following a crisis in April 2010.

 

30.   All of this material was elsewhere available in the GP records which were before the tribunal.  In any event, none of this is capable of influencing the decision of the tribunal.  This is because it was precluded from having regard to the circumstances not obtaining at the date of decision.  The actual decision was made on 19 June 2009 for a renewal date of 2 November 2009.  The evidence does suggest deterioration in the applicant’s medical condition after those dates, but the appeal tribunal was precluded from taking that into account by Article 13(8)(b) of the Social Security (NI) Order 1998.

 

31.   Therefore, it appears to me, all of the issues raised by the representative in his submission, to the extent that they were relevant to the dates under consideration, were dealt with.

 

32.   I therefore conclude that no material error has been made by the appeal tribunal and I dismiss the appeal.

 

 

(Signed):  O Stockman

 

Commissioner

 

 

 

26 April 2012