Northern Ireland - Social Security and Child Support Commissioners' Decisions

AMW-v-Department for Social Development (DLA) [2013] NICom 11

Decision No: C2/12-13(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 1 September 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal from the decision of an appeal tribunal which sat at Belfast on 1 September 2011.  Leave to appeal was granted by the legally qualified member (LQM) of the tribunal.

 

2.     For the reasons given below, I disallow the appeal.

 

REASONS

 

         Background

 

3.     The Department for Social Development (the Department) first awarded disability living allowance (DLA) to the appellant in 1995.  Her claim was primarily based upon needs arising from spinal canal stenosis.  She has since had a series of awards of varying rates and durations.  Eventually, following supersession on 15 May 2003, she was awarded the high rate of the mobility component and the high rate of the care component for an indefinite period from and including 31 January 2003.

 

4.     A periodic enquiry form was issued to the appellant on 19 January 2011 in which she confirmed continuing spinal canal stenosis, osteoarthritis, diabetes, depression and an underactive thyroid.  Subsequently the Department obtained a general practitioner (GP) factual report and an examining medical practitioner (EMP) report.  The Department then made a decision superseding and reducing the appellant’s DLA award to the low rate of the mobility component and the middle rate of the care component for an indefinite period from and including 6 May 2011.  She appealed.

 

5.     The tribunal which heard the appeal made an award of low rate care component for a three year period and disallowed the mobility component.  On 7 September 2011, the appellant requested a statement of reasons for the tribunal’s decision, which was issued to her on 31 January 2012.  On 29 February 2012 she made an application for leave to appeal to the Social Security Commissioner.  This was granted by the LQM on 8 March 2012 and notified to the appellant on 12 March 2012.  The LQM does not specify the basis for granting leave to appeal other than by referring to the application letter of the appellant’s representative in general terms.

 

         Submissions

 

6.     The appeal was received at the Office of the Social Security Commissioners on 12 April 2012.  The appellant, through her representative, Mr Mitchell of Citizens Advice, relied upon three grounds.  These were that the tribunal had erred in law by:

 

(i)        misdirecting itself as to the law in relation to how it should treat the failure of a medical practitioner to provide information in response to a request and evidence of the appellant’s ability to drive;

 

(ii)       making a decision on mobility which was not supported by evidence;

 

(iii)      failing to give adequate reasons for its treatment of the EMP’s evidence.

 

7.     On 15 May 2012 the Department was invited to make observations on the appeal.  Mr Hinton replied for the Department, indicating that the Department considered that the tribunal decision was not erroneous in law and opposing the appeal.

 

8.     Following an invitation on 4 July 2012, the appellant’s representative indicated on 3 August 2012 that he had no further comments to make.

 

9.     I directed an oral hearing of the appeal and I directed the parties to prepare written summaries of the case which they intended to advance at the hearing.

 

         Case summaries

 

10.   The appellant, now represented by Mrs Banks of Citizens Advice, relies upon the grounds previously submitted to the LQM.  She submits that the tribunal has erred by taking the GP’s lack of comment on night time care needs to infer that she has none, and submits that this approach is contrary to GB Commissioner Jupp’s decision in CDLA/4580/2003.

 

11.   Mrs Banks further submits that the fact that the appellant drives to church and other familiar places has been unjustifiably relied upon by the tribunal in finding that she does not require guidance or supervision on unfamiliar routes out of doors.

 

12.   Mrs Banks submits that the tribunal has irrationally rejected evidence from the appellant’s GP in the assessment of her entitlement to high rate mobility component, referring to the comment in her GP report that “all movements are painful”.

 

13.   Mrs Banks further submits that the tribunal has given inadequate reasons for its decision.  In particular, she submits that the tribunal has taken a selective view of the evidence of the EMP and has made its decision without properly explaining why it preferred some of the EMP evidence and rejected other parts.  She relies on C3/06-07(DLA) - a decision of Deputy Commissioner Powell - as authority for the proposition that a tribunal can accept or reject parts of a medical report provided that the reasons for this are explained.

 

14.   For the Department Mr Hinton opposes the appeal.  He submits that the GP’s evidence was not relied on to any material extent in relation to night time care needs.

 

15.   He refers to the decision of Commissioner Brown in R1/07(DLA) in stating that driving a car was evidence of clear headedness and competency and that in any event other factors were involved in the decision on low rate mobility.

 

16.   He submits that not all pain will amount to severe discomfort, relying on C16/98(DLA) and that in any event the decision on high rate mobility was soundly based on evidence.  He further submits that C3/06-07(IB) can be distinguished and that the tribunal had properly given reasons for its decision in any event.

 

         Hearing and Assessment

 

17.   I held a hearing of the appeal.  Mrs Banks appeared for the appellant and Mr Hinton for the Department.  I am grateful to both representatives for their helpful submissions.

 

18.   Mrs Banks submits that the tribunal has erred in its consideration of the night time care needs.  The appellant had said in her claim form and in evidence that her husband would help her four or five times per night to get to the toilet and would also help to turn her in bed at night.  The tribunal comment that the appellant’s own doctor does not make any specific mention of care needs at night.  On this basis Mrs Banks submits that the tribunal reached its decision on an erroneous basis.  In CDLA/4580/2003, Commissioner Jupp makes the point that the lack of comment by a doctor is a neutral piece of evidence, rather than one which suggests that a patient does not have a particular problem.  I agree with Commissioner Jupp, for the reasons I explain in EN v Department for Social Development [2012] NI Com 305.

 

19.   However, I do not consider that the tribunal in the present case was basing its decision on lack of comment by the GP.  The tribunal commented that the GP had not mentioned specific care needs at night.  However, the reasons of the tribunal regarding night time needs were that:

 

“The Examining Medical Practitioner after a full medical examination was of the opinion that the appellant would be able to cope unaided in turning in bed, getting out of bed, getting to the toilet and with using the toilet … . The Examining Medical practitioner did record that on occasions when the appellant’s back pain was very severe that she would require some help with toileting at night, but that she did generally manage on her own.  There is no mention in the appellant’s notes and records of any particular night time needs and assistance and in fact there is a note on 11 March 2011 that the appellant’s urinary function had improved”.

 

20.   On this basis, the tribunal accepted that on some occasions at night the appellant may need some help, but did not accept that this occurs on a regular basis on most nights.

 

21.   I consider that the tribunal was entitled to reach its conclusion on the basis of the EMP report alone.  It referred to the absence of evidence of night time care needs, but I am satisfied that in the present case the tribunal did not treat the lack of such evidence as anything but neutral.  Therefore I do not consider that there is merit in the appellant’s first submission.

 

22.   Mrs Banks further submits that the tribunal has approached the evidence in relation to the low rate mobility component wrongly.  In particular, she submits that it has relied on evidence of driving on familiar routes to ground a decision which requires consideration of walking on unfamiliar routes.

 

23.   Again, however, the evidence considered by the tribunal is not confined to this issue.  The tribunal accepts the evidence that the appellant suffers from depression.  However, the tribunal notes the GP’s comment that the appellant had full insight and awareness of danger.

 

24.   The panel then relied on evidence of the appellant driving alone as evidence of confidence, of an ability to be aware of what is going on around her, of an ability to deal with [new] situations arising continually, awareness of dangers and ability to get to places without stopping for directions.  This is doing no more than holding, as approved by Commissioner Brown in R1/07(DLA), that driving is evidence of clear-headedness and competency.  I consider that this is a valid approach.

 

25.   Moreover, the tribunal emphasises that it does not make the finding on mobility on the basis of driving alone.  It has referred to the GP’s comments.  It refers to the EMP report, but specifically holds that the EMP’s comment that the appellant would “benefit from company” does not satisfy the statutory test.  The tribunal also notes the lack of support for the appellant’s statements on the severity of her condition from the medical records.  There is nothing to suggest that it affords anything other than a neutral status to this lack of corroboration.  I therefore am satisfied that the tribunal does not err in law on the second ground advanced by the appellant.

 

26.   The appellant’s third ground is essentially to the effect that the tribunal has not explained why it preferred some aspects of the medical evidence to others.  She submits that the tribunal has irrationally rejected the GP’s comment that “all movements are painful”.  The consultant, Mr McLorinan, had also said that the appellant’s mobility is severely restricted by pain.  However, to the EMP the appellant had said that she could walk for ten or 15 minutes.  At hearing, she had further said that she could walk for ten minutes.

 

27.   In response, Mr Hinton relied upon the decision of Commissioner Brown in C16/98(DLA) to the effect that not all pain will amount to severe discomfort.  He submits that there is no inconsistency in the findings of the tribunal.  I agree with Mr Hinton.  The tribunal has considered evidence from a variety of sources.  I accept that, on the basis of that evidence, it was entitled to reach the conclusion which it came to.

 

28.   On reasons, Mrs Banks submits for the appellant that the tribunal has not explained why it has accepted some of the EMP’s evidence and rejected other parts.  However, it seems clear to me that the tribunal has based its award of the low rate of the care component on the EMP report, in relation to physical and mental health needs.  As mentioned above, the tribunal has noted the EMP’s finding to the effect that the appellant would benefit from encouragement and company when outdoors due to chronic anxiety.  It does not reject this, but rather indicates that it did not consider that the test for the low rate mobility component was satisfied on this evidence.  For this reason, I do not consider that there is merit in the appellant’s final point.

 

29.   Therefore, I dismiss the appeal.

 

 

(signed)  O Stockman

 

Commissioner

 

 

 

25 February 2013