Northern Ireland - Social Security and Child Support Commissioners' Decisions

JC-v-Department for Social Development (DLA) [2012] NICom 282

Decision No:  C67/11-12(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 31 May 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    This is an application for leave to appeal from the appeal tribunal sitting at Cookstown on 31 May 2011.

 

2.    An oral hearing of the application has been requested in the initial application for leave to appeal.  The applicant’s representative on 14 February 2012 subsequently indicated that he was content for the Commissioner to proceed without an oral hearing.

 

3.    I have considered the matter without a hearing, and I grant leave to appeal on one of the applicant’s grounds.

 

4.    In the light of the arguments of the parties on that ground, I allow the appeal and remit the case to a newly constituted tribunal for redetermination.

 

       REASONS

 

       Background

 

5.    The applicant was previously awarded disability living allowance (DLA) consisting of the high rate of the mobility component and the low rate of the care component from 31 July 2001 to 30 July 2002.  By way of a supersession decision made on 12 May 2002, his award was increased to the high rate of the mobility component and the high rate of the care component from and including 22 March 2002.

 

6.    On 18 November 2010, the Department superseded the award and disallowed all entitlement from and including 18 November 2010.  The applicant appealed.  The appeal tribunal upheld the decision to supersede the applicant’s award and found that he was not entitled to DLA at any rate.

 

7.    The applicant requested a statement of reasons for the decision of the appeal tribunal on 21 June 2011.  This was issued to him on 9 August 2011.  On 22 August 2011, he applied to the legally qualified member for a setting aside of the appeal tribunal decision, but this was refused by a decision notified to the applicant on 26 September 2011.

 

8.    The applicant then applied for leave to appeal from the decision of the appeal tribunal on 6 October 2011.  Leave to appeal was refused by the legally qualified member in a decision issued to the applicant on 14 October 2011.

 

9.    The applicant applied to the Office of the Social Security Commissioners for leave to appeal in an application received on 26 October 2011.

 

       Submissions

 

10.   The submissions of the applicant are to the effect that:

 

(i)          the examining medical practitioner (EMP) indicated that because of a total knee replacement operation the applicant would need someone with him when walking outdoors;

 

(ii)         no reason has been given by the tribunal for not considering the applicant’s problem with colitis;

 

(iii)       the tribunal found against him despite the EMP stating that it is unsafe for the applicant to lift hot pans and that he needs help with socks, shoes and laces;

 

(iv)       the tribunal mistakenly adopts a statement to the effect that the EMP observed the applicant change his ileostomy bag;

 

(v)        his right knee condition had not improved and the tribunal erred “by not applying the criteria that a person who cannot walk 50 yards because of pain and discomfort satisfies the conditions”.

 

11.   The Department was invited to make observations on the grounds of application. Mr Hinton responded for the Department.

 

12.   He submitted that the evidence before the tribunal showed that the tribunal’s decision on mobility was sustainable, and that there was no evidence to suggest that the tribunal ignored any functional disability arising from the applicant’s medical condition of colitis.  He further noted that the tribunal had made findings in relation to the applicant’s stated need for help with shoes and socks, holding that the limited amount of time involved would not amount to attention for a significant portion of the day.

 

13.   However, Mr Hinton submitted that in the area of preparing a cooked main meal more detailed investigation was needed.  He also agreed that the tribunal was wrong to record a finding that the EMP had observed the applicant change an ileostomy bag.

 

14.   In response, the applicant’s representative concurred with the observations of the Department and indicated that he was content for the Commissioner to proceed without holding an oral hearing.

 

       Assessment

 

15.   An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

16.   Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

17.   An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

18.   It is not an error of law that an appeal tribunal has made a decision based on evidence where a Commissioner, on the same evidence, might prefer a different outcome.  Simply because a Commissioner may disagree with the decision of an appeal tribunal, it does not mean that the appeal tribunal decision is erroneous in point of law.

 

19.   I have considered the grounds submitted by the applicant.

 

20.   An aspect of the legislation which is of particular relevance to this application is section 73(9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  This provides that:

 

(2)  Subject to the following provisions of this section, a person shall not be entitled to the mobility component of a disability living allowance unless—

 

(a)        throughout—

 

(i)          the period of 3 months immediately preceding the date on which the award of that component would begin; or

 

(ii)        such other period of 3 months as may be prescribed,

 

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

 

(b)        he is likely to continue to satisfy one or other of those conditions throughout—

 

(i)          the period of 6 months beginning with that date; or

 

(ii)    (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

 

21.   This subsection contains the rule to the effect that the satisfaction of the conditions of entitlement to the mobility component must be likely to continue for six months from the date of prospective entitlement.

 

22.   In his first ground, the applicant relies on the EMP’s assessment that he would need someone with him when walking outdoors.  What the EMP actually says is that “At the minute due to his TKR (total knee replacement) he would need somebody with him but his confidence and mobility as well as independence should improve”.  This was said on 22 September 2010 in the context of the applicant’s knee surgery on 11 August 2010, when the EMP also said “Apart from restricted ROM (range of movement) knee post-op (expected) his lower limbs were more or less normal and his mobility would be expected to greatly improve in the next few months”.

 

23.   The tribunal was required to look at the applicant’s condition as around the date of the supersession decision of 18 November 2010, but also as to whether he was likely to have the same level of mobility problems for at least the next six months for the purposes of section 73(9).  The tribunal took into account a review report from March 2011, which indicated that the pain and discomfort was greatly reduced, walking is improving and he is mobilising unaided.  Although post-dating the decision of 18 November 2010, and recognising that the tribunal was constrained by Article 13(8)(b) of the Social Security (NI) Order 1998 from considering any circumstances not obtaining at the time when the decision appealed against was made, this was evidence relevant to the question of whether improvement in walking ability would have been expected within six months of 18 November 2010.  Nothing in the evidence suggested that the normal path of recovery from surgery would not have been applicable in the applicant’s case.

 

24.   I therefore find that the tribunal has not erred in relation to the comment of the EMP that the applicant would need somebody with him.

 

25.   In his second ground, the applicant says that the tribunal did not give reasons for not considering his problem with colitis.  Mr Hinton makes the correct point that a medical condition does not give rise to entitlement in its own right, but rather functional disability.  There was nothing to show functional disability arising from colitis per se.

 

26.   I will return to the applicant’s third point below.

 

27.   In relation to the applicant’s fourth point, Mr Hinton accepts that there may be an arguable error of law arising from the tribunal’s erroneous record that the EMP observed the applicant to change his ileostomy bag.  I disagree.  The EMP report contains a list of behaviours with a right hand bracket enclosing them and the word “Observed” to the right of the bracket.  Immediately below the EMP recorded “Changed bag on own today”.  It is perhaps unfortunate that the tribunal recorded that the applicant “was observed by the EMP to change his ileostomy bag on his own”.  It might have been better had the tribunal used the term “noted” or “recorded” rather than “observed”, as there was no suggestion that the EMP’s note that the applicant changed his own bag was based on ocular observation.  The point of the matter is that the tribunal found that the applicant had changed his ileostomy bag independently.  It does not matter whether they thought that this was based on the EMP’s actual observation (however improbable) or from the EMP noting that the applicant had gone from the room to change the bag.

 

28.   The tribunal had not accepted that that the applicant needed a lot of help with his ileostomy bag as he claimed.  It relied on the absence of any record of difficulty in the general practitioner records and found that the applicant was capable of dealing with problems with his bag alone.  The record of the EMP merely served to confirm that finding.

 

29.   On his fifth point, the applicant submits that “the tribunal did not apply the criteria that a person who cannot walk 50 yards without pain and discomfort satisfies the conditions”.  There is no such criterion governing entitlement to the mobility component.  The question is whether a person is unable or virtually unable to walk.  While walking distance is a factor to be considered, there is no yardstick test of universal application.  There is no merit in this point.

 

30.   Returning to the applicant’s third point, the tribunal accepted that he needed help with socks, shoes and laces.  Arising from this the tribunal nevertheless found that the amount of attention required in this regard would not have been for a significant portion of the day – thus finding that entitlement was not established.  I see no error in this part of the decision as this was a finding which the tribunal was entitled to make.

 

31.   However, at the date of decision the EMP had found that the applicant could not safely lift hot pans.  The EMP had found reduced flexion and extension of the applicant’s right elbow on examination.  In his claim form the applicant had stated that his wife did the cooking but that he could not lift heavy saucepans because of his elbow.  In submissions at the hearing his representative referred to significant problems with the elbow and to the EMP’s finding of difficulty with pans.  The applicant had also stated at hearing that he was afraid of electrical things and had left something in the microwave and there was an “incident”.  The tribunal records “His evidence that he is unable to prepare a meal because of fear of anything electrical is unconvincing.  He admits that he could peel potatoes”.

 

32.   In its statement of reasons the tribunal further records in relation to cooking that “any difficulty with hot pans identified by the examining medical practitioner was not the reason advanced by the appellant for any problem associated with this activity” (referring to cooking), before going on to consider the impact of knee surgery on the ability to cook.

 

33.   Mr Hinton in his observations submits that the tribunal’s reasoning is flawed, as it emphasised the applicant’s fear of electrical items as a reason why he did not satisfy entitlement.  It was erroneous for the tribunal to state in its reasoning that the applicant did not identify lifting as a problem.

 

34.   He further submits that at the date of hearing the applicant had further stated that he had difficulty standing to prepare a meal.  Mr Hinton submits that, as the EMP had said that the applicant could only peel or chop vegetables when sitting down, the contention of the applicant that he could not stand to prepare a meal required further investigation.

 

35.   I accept the submissions of both parties that the issue of the extent of the limitation on ability to cook resulting from elbow function was not fully dealt with by the tribunal.  The tribunal made a decision under a misapprehension that the elbow problem was not being relied on by the applicant in his case to it.  While this is a relatively small blot in an otherwise careful decision, I consider that this gives rise to an arguable point of law and I grant leave to appeal.

 

36.   On the basis of the argument before me, I consider that the tribunal has erred in law in not dealing with the issue of functional limitations in the applicant’s elbow, and possibly the interaction of that condition with the applicant’s other conditions such as difficulties standing, when considering the “cooking test”.

 

37.   I have considered the evidence in the file to assess whether I can give the decision which the tribunal should have given.  However I feel that this is impossible on the facts of the present case.  Therefore I remit the appeal to a new tribunal for redetermination.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

9 May 2012