Northern Ireland - Social Security and Child Support Commissioners' Decisions

LJ-v-Department for Communities (DLA) [2017] NICom 29

 

Decision No: C43/17-18(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 3 September 2014

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 3 September 2014.

 

2. For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998. I remit the appeal to a newly constituted tribunal for determination.

 

REASONS

 

Background

 

3. The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 16 December 2013 on the basis of needs arising from Type 1 diabetes and having only one arm. The Department obtained a report from the applicant's general practitioner (GP) on 10 January 2014. On 21 February 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 16 December 2013. The applicant appealed.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member. After a hearing on 3 September 2014 the tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal's decision and this was issued on 12 January 2015. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 13 March 2015. On 31 March 2015 the applicant applied to a Social Security Commissioner for leave to appeal.

 

5. (The Department was renamed the Department for Communities from 8 May 2016.)

 

Grounds

 

6. The applicant submits that the tribunal has erred in law on the basis that:

 

(i) it misinterpreted the law;

 

(ii) it gave inadequate reasons.

 

7. The Department was invited to make observations on the applicant's grounds. Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department. Mr Donnelly submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

8. Subsequently, Ms Loughrey of Law Centre NI came on record to represent the applicant. She submitted that the tribunal proceedings had been unfair. The applicant had been provided with an interpreter in the course of the hearing. However, it was submitted that the tribunal had failed in its inquisitorial role in that context. It had put certain matters which it considered to be discrepancies, but did not seek evidence about all material issues. It was submitted that the tribunal had failed to explain the function of the interpreter and that it should have been explained that the role of the interpreter was to enable him to participate fully in the proceedings.

 

The tribunal's decision

 

9. The tribunal had documentary evidence before it consisting of the Department's submission and the applicant's general practitioner (GP) records. The applicant attended and gave oral evidence through a Polish interpreter. The sole issue identified was potential entitlement to low rate care component. The applicant had an artificial arm. He stated that he required help with buttons and shoes when dressing, with cutting up food at mealtimes and with peeling and chopping the ingredients for cooking. He also indicated a need for assistance with testing blood and with insulin injections.

 

10. The tribunal found that the applicant had undergone a left arm amputation below the shoulder when aged one. The tribunal noted that the applicant had declined aids in the form of a spike board, bathing equipment and a Nelson knife (a knife with a hooked blade which can also be used as a fork) for people with the use of only one hand. The tribunal found inconsistency in the applicant's account of whether he needed help to dress and between what he had told his GP and what he had stated in his claim form. It considered that there was inconsistency in the stated number of daily injections between the claim form and the GP factual report (five instead of four) and in whether his wife, who was in Poland at the time of the claim, administered his injections. It found that the applicant overstated the amount of time that would be required for an injection. The tribunal found on the basis of an entry in the GP records - a Diabetic Clinic letter dated 20 February 2014 - that there was evidence of good diabetic control and that hypoglycaemia was controlled not by injection but by chocolate. In any event the tribunal concluded that it should be possible to draw blood for testing from a toe and administer injections to a hip with one arm.

 

11. In relation to main meal preparation the tribunal decided that the applicant was not as restricted as he claimed, on the basis that he had declined the offer of a spike board and a Nelson knife. It did not accept that he had any mental disablement such as should affect his motivation to cook. It found the applicant's evidence to be inconsistent and exaggerated and disallowed the appeal.

 

Relevant legislation

 

12. The sole issue in dispute in the appeal was the applicant's entitlement to low rate care component, on the basis of the main meal test and in the alternative on the basis of a need for attention for a significant portion of the day. The relevant legislation is to be found at section 72 of the Social Security Contributions and Benefits (NI) Act 1992. Section 72(1) provides:

 

72. -(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-

 

(a) he is so severely disabled physically or mentally that-

 

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

 

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; ...

 

Hearing

 

13. I held an oral hearing of the application. The applicant attended, represented by Mr Hatton of Law Centre NI. The Department was represented by Mr Donnelly of DMS. The applicant's first language is not English and he was assisted at the hearing by a Polish interpreter. The interpreter was the same interpreter who had assisted the applicant before the tribunal at first instance. However, no criticism had been made of the quality of the interpretation before the tribunal and neither of the parties saw a difficulty with the engagement of the same interpreter. In any event, it appeared to me that the applicant did not place particular reliance on the interpreter and was well able to follow the proceedings in English.

 

14. Mr Hatton confirmed that the answers recorded by the tribunal in the record of proceedings are accurate and that no reliance was placed on argument that unfairness resulted from any language issue. However, the tribunal had placed reliance on inconsistencies between evidence at hearing and evidence in the form of the applicant's statements in the DLA claim form and in the form of statements by the applicant recorded in a doctor's report. These elements of the evidence had not been given with the assistance of an interpreter. Mr Hatton submitted that the evidence given to a medical professional without an interpreter should not have been subjected to the degree of scrutiny which the tribunal had applied to it.

 

15. Mr Hatton submitted that the tribunal had based its decision on a judgement concerning the applicant's credibility. However, he submitted, the applicant had objectively verifiable disablements - namely the loss of an arm and therefore the use of only one arm and one hand, and being an insulin-dependent diabetic. He referred to the tribunal's statement of reasons where it was stated:

 

"The Tribunal has recorded above how intrinsically flawed was the Appellant's evidence in terms of inconsistency and exaggeration. These features of his evidence, overall, significantly reduced his credibility in the mind of the Tribunal. Whilst it was of the view that from time to time the Appellant may require assistance to administer insulin, it was not satisfied that the need brought him within the provisions of section 72(1)(a)(i) of the 1992 Act. In other words we were not satisfied that such assistance as was occasionally needed would be for a significant portion of the day".

 

16. Mr Hatton submitted that, as there was no evidence of variability in the applicant's condition, the finding was difficult to accept.

 

17. Mr Hatton further referred to the tribunal's findings in relation to the main meal test. The tribunal had said:

 

"The Tribunal also considered the issue of the preparation and cooking of a main meal for himself by the Appellant. The Tribunal considered all the oral and documentary evidence in this regard, including the Appellant's wife's statement at Tab 8. However, the evidence relating to the preparation of a cooked main meal, pursuant to section 72(1)(a)(ii), is so inconsistent that we did not accept it. Whilst Tabs 7-8 state the Appellant needs assistance in meal preparation, the Tribunal considered that if the Appellant is as impaired in this regard as he asserted, it is illogical that he declined the offer of the cooking aids of a spike board and a Nelson knife on 16 June 2004 [sic]".

 

18. Mr Hatton submitted that, objectively, a person with only one arm will experience difficulty preparing a cooked main meal. However, the applicant's functional limitation was not called into question. What the tribunal should have been addressing was the extent of any limitation and the extent of any assistance that would be required. The tribunal's focus on inconsistency and credibility distracted it from the proper task of identifying what needs the applicant had.

 

19. Mr Hatton further submitted that certain findings of the tribunal bordered on irrationality. He referred to a passage in the decision under the heading "General Comment About Inconsistency & Credibility ..." where it stated:

 

"The GP notes and records for 20 February 2014 contradict all of these assertions, showing good diabetic control and apparent regulation by the Appellant of his hypoglycaemia not by injection but by chocolate. Therefore, there is very significant inconsistency in the Appellant's written and oral accounts of the regulation of his Type 1 diabetes".

 

20. Mr Hatton submitted that the applicant had Type 1 diabetes which was regulated by daily insulin injections. Hypoglycaemia was a separate condition related to low blood sugar. The tribunal appeared to understand that the use of chocolate was an alternative to the use of insulin to control Type 1 diabetes generally. However, chocolate would be used to raise low blood sugar levels while insulin would have the opposite effect. He submitted that this was either a mistake as to a material fact or an irrational finding.

 

21. Mr Hatton expressed surprise that the tribunal had made an issue of the difference in the statement in the applicant's claim form in December 2013 that he needed five injections of insulin each day and the letter of his GP in April 2014 stating that he needed four injections. It was submitted by the applicant that the need for insulin is a product of the functioning of his body, and linked to his blood sugar level around the times of eating each day.

 

22. Referring to the statement of reasons, Mr Hatton further expressed surprise that the tribunal would expect the applicant to draw blood from a toe for the purpose of using a glucometer device, in the light of the well-known risks arising from cuts to a diabetic person's feet.

 

23. Mr Donnelly relied upon the expertise of the tribunal - and particularly of the medical member - in reaching its decision. Nevertheless, he observed that the applicant was not afforded a chance to comment on why he refused the aids offered to him. Mr Donnelly accepted that the lack of interpreter when talking to the doctor could give rise to communication issues and these could have led to complication in terms of assessing credibility.

 

Assessment

 

24. The applicant in the present case had given his evidence to the tribunal through a Polish interpreter. Although his initial grounds submitted that this placed certain additional requirements on the tribunal hearing his case, this was not pursued by Mr Hatton at hearing.

 

25. The essence of Mr Hatton's case was that the tribunal was faced with an appellant with objective disabilities - namely he had only one arm and he was an insulin-dependent diabetic. In relation to the issue of whether he reasonably required attention with the process of taking a sample of blood to test in a glucometer and subsequently injecting with insulin, this had to be assessed on the basis of how this task could be performed with one arm and one hand. In relation to whether he could prepare a cooked main meal for himself, the tribunal had to assess whether a one-armed man could perform the tasks necessary in preparing that meal.

 

26. The tribunal placed emphasis on the credibility of the applicant's evidence. I accept the submission of Mr Hatton that undue emphasis was placed on inconsistency between matters such as whether the applicant required four or five daily injections. In particular, I accept that the need for injections is connected to variable factors such as when and what the applicant had eaten in the day and the resulting level of his blood sugars. It seems to me that the tribunal placed undue emphasis on any resulting discrepancy.

 

27. The tribunal further took judicial notice that blood sugars can only be reliably monitored from a peripheral vein (a finger or toe, for example). It found that the applicant should be able to draw blood from a toe without assistance and to administer an injection into a hip without assistance. It does not appear that these possible procedures were put to the applicant for his response. In his submissions, he refers to the need of diabetics to observe foot care, and the risk of amputation which can arise from complications of diabetes through injury to the feet. He further submits that he injects into fatty areas of the body and that he mostly uses the abdomen for injections. He refers to the lack of fat in the hips and the proximity to larger blood vessels which make injections at that site undesirable. He further refers to the need for the skin to be pinched in order to inject. It appears to me that the submissions of the applicant, for example, in relation to taking blood with one hand from a toe, indicate that the tribunal's findings are arguably inconsistent with proper diabetic foot care. It seems to me that the applicant should have been permitted to respond to the tribunal on its view of appropriate ways of taking samples of blood and injecting insulin. However, from the record of proceedings, it appears that he was not. I consider that the fairness of the proceedings is diminished as a result.

 

28. A further difficulty appears in the finding of the tribunal that he controls "hypoglycaemia not by insulin but by chocolate". I am not medically qualified and I have not been sitting with the benefit of a medical member. However, it appears that an accidental error at best or a fundamental misunderstanding at worst occurs in that part of the tribunal's decision. The tribunal appears to find that there is an inconsistency in the applicant stating that he needs injections to regulate his Type 1 diabetes, whereas GP notes indicate that he controls hypoglycaemia by chocolate. As I understand it, insulin would never be used to control hypoglycaemia, as it would have the effect of further lowering blood sugar. Chocolate on the other hand would raise blood sugar levels, and would treat hypoglycaemia, but it would not regulate diabetes. The tribunal refers to "inconsistency, exaggeration and evasion". These are strong terms in the context of an appellant who has an objective need for insulin injections based on medical evidence. I am troubled that the use of this strong language may have been prompted by a fundamental misunderstanding of the applicant's condition, rather than accidental error.

 

29. Mr Hatton further submitted that the tribunal had incorrectly addressed the main meal test in terms of preparation of a cooked main meal by focusing on the issue of credibility. In particular, the tribunal stated that it found the applicant's rejection of a Nelson knife and a spike board inconsistent with his submitted needs. Here again, however, there was an objective disablement very obviously present, namely that the applicant had only one arm. The task before the tribunal was to assess whether the applicant could perform the various tasks involved in food preparation with one arm, using the type of equipment normally used in a kitchen.

 

30. In R(DLA)2/95 Mrs Commissioner Heggs stated her view that the cooking test was "a hypothetical test to be determined objectively". Factors such as the type of equipment or facilities available to a particular claimant were irrelevant. "Normal reasonable facilities" were to be postulated, though these "might include certain devices to assist". The cooked main meal was a labour-intensive reasonable main meal for one (not a celebration meal or a snack), cooked on a "traditional cooker". The meal would have to be cooked on a daily basis: bulk cooking and freezing on days when help is available, with each meal being defrosted and heated in a microwave on other days, would not fulfil the test. The word "prepare" further indicated that the test contemplated the peeling and chopping of fresh vegetables, since frozen vegetables require no real preparation. But a chop, a piece of fish or meat ready minced would not fall in the category of convenience foods and could properly be regarded as basic ingredients. The test includes "all activities auxiliary to the cooking such as reaching for a saucepan, putting water in it and lifting it on and off the cooker". The test was designed as a measure of a claimant's ability to perform specific daily tasks, not of a need for help. In this respect, as stated by Commissioner Fellner in CDLA/770/2000, "devices specially designed for disabled people would not be within the spirit of R(DLA)2/95".

 

31. As I understand the relevant jurisprudence, which I agree with, and although this was not argued before me, devices such as a Nelson knife are not to be considered when determining whether an appellant can prepare a cooked main meal. Therefore the tribunal would not have been concerned to determine whether the applicant could prepare a meal using a Nelson knife and a spike board. The issue was more straightforward, and involved the hypothetical assessment of how he might, for example, peel a potato with his one arm and one hand, using conventional kitchen equipment.

 

32. In this context, it appears odd to me that refusing a Nelson knife or a spike board would have coloured the tribunal's view of the applicant's evidence to the extent that it did. I regret to say that I find that it focussed excessively on its view of the applicant's credibility to the detriment of applying the relevant statutory test. There is merit in Mr Hatton's submission.

 

33. In view of the submissions of Mr Hatton, I grant leave to appeal. I consider that sufficiently convincing argument has been made to demonstrate that the tribunal has erred in law and I allow the appeal.

 

34. Each of the parties submits that I should remit the appeal to a newly constituted tribunal and I agree, particularly in the context that the input of a medical member on the applicant's submissions around diabetic care is necessary.

 

35. I am informed that from 15 Feb 2016 the applicant was awarded DLA care component at the middle rate for an indefinite period. The new tribunal will therefore be considering the position only from to 16 December 2013 to 14 February 2016.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

1 June 2017