LC-v-Department for Communities (DLA) [2018] NICom 9

Decision No:  C75/17-18(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 17 October 2016

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 Banbridge.

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal. 

	REASONS

	Background

3.	The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 9 August 2012 and was awarded the high rate care component and the high rate mobility component to 8 February 2014.  He was subsequently awarded the high rate care component and the high rate mobility component to 8 February 2016.  He made a renewal claim from 9 February 2016 on the basis of needs arising from non-Hodgkins Lymphoma, rheumatoid arthritis, narrowing of the spine and gout.  The Department obtained a report from the appellant’s general practitioner (GP) on 7 March 2016. The Department received a report from an examining medial practitioner (EMP) on 31 March 2016.  On 4 April 2016 the Department decided on the basis of all the evidence that the appellant did not satisfy the conditions of entitlement to DLA from and including 9 February 2016.  The appellant 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 17 October 2016 the tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 23 January 2017.  The appellant 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 3 March 2017.  On 3 April 2017 the appellant applied to a Social Security Commissioner for leave to appeal. 

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

	Grounds

5.	The appellant submitted that the tribunal has erred in law on the basis that:

(i)	the tribunal breached the rules of natural justice;

(ii)	the tribunal erred in law in the assessment of the appellant’s credibility;

(iii)	the tribunal had erred in law in its interpretation of section 72 of the Social Security Contributions and Benefits (NI) Act 1992. 

6.	The Department was invited to make observations on the appellant’s grounds. Ms Adams of Decision Making Services (DMS) responded on behalf of the Department.  Ms Adams submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

	The tribunal’s decision

7.	The LQM has prepared a statement of reasons for the tribunal’s decision. From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, containing the claim form, a factual report from the appellant’s general practitioner (GP) and an examining medical practitioner’s (EMP) report.  It also had sight of an appeal submission on behalf of the appellant enclosing a pro forma GP report and a pro forma report from the community mental health team. The tribunal further had sight of the appellant’s medical records.  The appellant attended the hearing and gave oral evidence, accompanied by his partner and his representative. 

8.	The tribunal found that the appellant’s evidence was contradictory and not supported by his statements to the EMP or his medical records.  It found that, whereas his condition was incurable, for most of the time, except for a flare-up of gout or back pain, he remained capable of reasonable mobility and normal self-care, including cooking a simple meal.  Whereas the appellant had been receiving high rate mobility component until his renewal claim, the tribunal found that the EMP report, the medical records and his own statements to the EMP did not indicate that the appellant was virtually unable to walk most of the time. However, it accepted that during a flare-up of gout or his back condition he may be virtually unable to walk. 

9.	The tribunal observed that the EMP indicated full functioning of the appellant’s upper limbs with a slight impairment affecting his shoulders. While again accepting difficulties with self-care during a flare-up, the tribunal found these to be relatively infrequent and not affecting the appellant’s ability to care for himself most of the time.  It considered that he remained capable of preparing a simple meal for one person.  It found that he did not require attention at night for physical reasons.  It further found that, whereas the appellant was depressed, there was nothing to indicate a risk of self-neglect in terms of hygiene or nutrition, or of self-harm.  The tribunal further found that the appellant did not require supervision by day or night.  It found his lymphoma to be in remission and that there had been an improvement in the appellant’s condition since the last DLA assessment. 

	Relevant legislation

10.	The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992. This 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;

(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night,—

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

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

(a) throughout— 

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

(ii) the 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.

	The legislative basis of the mobility component is section 73 of the same Act. This provides:

73.—(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;

(ab) he falls within subsection (2) below;

(b) he does not fall within that subsection but does fall within subsection (2) below;
(c) he falls within subsection (3) below; or

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

	Hearing

11.	I held an oral hearing of the case. Mrs Carty of Law Centre NI appeared for the appellant.  Mrs Coulter of DMS appeared for the Department.  I am grateful to the representatives for their assistance. 

12.	Mrs Carty firstly submitted that the tribunal acted in breach of the rules of natural justice in the manner that it dealt with the evidence contained in the appellant’s GP records at the hearing.  The tribunal recorded that the appellant’s representative at the hearing declined the opportunity to consider the GP notes prior to the hearing.  Nevertheless, Mrs Carty submitted that it is evident that evidence contained in the GP notes was material in the determination of the appeal.  She submitted that, in order to comply with the rules of natural justice, the tribunal should have specifically drawn the attention of parties to that evidence and provided an opportunity for its consideration.  She submitted that the tribunal should also have indicated to the appellant and the representative that there may have been other evidence in the notes which was not referred to, which might have been helpful to his case.  

13.	Mrs Carty observed that the tribunal states that nothing in GP records indicated distorted fingers as claimed by the appellant.  She refers to evidence dating from 1991 of clawing of the 4th and 5th fingers of the appellant’s left hand, and also of decompression of the left ulnar nerve in 1995 and to a report in 2007 which indicated, “In the arms the left hand shows wasting of the 1st web space and clawing of the ring and little fingers which relate to some surgical procedure he had done in the more distant past”.

14.	Mrs Carty submitted that the tribunal “fails to acknowledge in its decision evidence within the notes of back pain and treatment and referrals in relation to it for more than 30 years”.  Whereas the medically qualified member of the tribunal had stated that MRI and CT scans were clear and showed no narrowing of the spine and no bulging discs, in 2002 the medical records indicated “I note a CT scan in Nov 2001 showed spinal stenosis.” and “I very strongly feel that he has disc pathology with co –existing spinal stenosis.”  In a report of 2007 it was recorded that, “… an MRI demonstrates spinal stenosis.”  

15.	Mrs Carty submitted that evidence within the GP notes showed that the appellant had a history of depression and he was recorded as having a major depressive episode in 2013.
16.	Mrs Carty submitted that the tribunal did not give the appellant adequate opportunity to respond to evidence it had extracted from the GP notes.  She submitted that the tribunal did not draw the attention of the appellant to the fact that there might be supportive evidence within the GP notes.  On this basis it was submitted that the tribunal has acted in breach of the rules of natural justice.

17.	Mrs Carty further submitted that the tribunal has erred in its assessment of the appellant’s credibility.  She submitted that the tribunal’s errors in relation to the appellant’s hand and back pain materially affected its assessment of his credibility.

18.	She observed that the tribunal made reference to a record in the GP notes that the appellant was making hay in 2014 when in fact he does not have machinery to make hay and responded that he may have been present while others were making hay at that time.  She submitted that the tribunal’s assessment of his evidence was influenced by an error of fact.  

20.	Mrs Carty further submitted that the tribunal has erred in law in finding that the appellant is not entitled to an award of the care component.  She submitted that the tribunal has taken the wrong approach and did not establish the likelihood and severity of the risk that supervision was necessary to guard against.

21.	For the Department, Mrs Coulter submitted that once GP records are in front of tribunal they are part of the evidence.  She submitted that the tribunal had asked about contradictions in evidence concerning flare-up of back pain and pointed out that the representative could have asked for sight of the medical records at that time.  She emphasised that the tribunal’s questions were addressed to identifying needs arising from the appellant’s condition.  She pointed out that the tribunal accepted that the appellant experienced flare-ups of gout and back pain.  However, it had held that the flare-ups were not for a sufficiently appreciable time to justify an award of DLA.  She submitted that the effects of the appellant’s medical conditions on mobility had been properly assessed on basis of the totality of the evidence, including Dr Lee’s report. 

22.	Dealing with some of the issues of fact advanced by Mrs Carty, Mrs Coulter submitted that the tribunal had indicated the evidence it preferred.  Whereas Mrs Carty pointed to the tribunal’s finding that  there was nothing to indicate distorted fingers, she referred to the tribunal’s evident acceptance of evidence of clawed fingers in EMP report, which found that the effects of this condition was a slight impairment in the appellant’s hands.  She submitted that the tribunal had dealt with this issue in its reasoning and had accepted the findings of the EMP. 

23.	Mrs Coulter submitted that the tribunal went through the evidence, had given adequate consideration to the appellant’s medical conditions and placed appropriate weight on the evidence of functional limitations. 
24.	Mrs Carty sought permission to adduce the appellant’s medical records as evidence.  I agreed to admit this evidence, giving an opportunity to Mrs Coulter to inspect it.  However, Mrs Coulter declined the opportunity, consistently with Departmental policy not to consider an appellant’s medical records.

	Assessment

25.	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. 

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

27.	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. 

28.	In this case, I am satisfied that the appellant raises points of law which are arguable and I grant leave to appeal.  With the consent of each of the parties, I proceed to treat and determine the application as if it were an appeal. 

29.	In her first ground, Mrs Carty points to the medical records of the appellant which were before the tribunal with his consent.  The appellant’s representative declined to view these in advance of the tribunal hearing.  The submissions of Mrs Carty for the appellant raise questions about the extent of the tribunal’s inquisitorial function. Essentially, whereas the appellant’s representative declined to view the appellant’s medical records in advance of the hearing, the submission of Mrs Carty is that the tribunal was under an obligation to put negative aspects of that evidence to the appellant for comment, but also to bring positive aspects of that evidence to the attention of the representative for submission. 

30.	Mrs Carty did not direct me to any authority for the proposition that the tribunal was obliged to bring favourable material from the medical records to the appellant’s or representative’s attention.  At hearing the decision of Chief Commissioner Mullan in C15/08-09(DLA) was relied upon as authority for the proposition she advanced.  In that case, the principle accepted was that compliance with the requirements of Article 6 of the European Convention on Human Rights (ECHR) includes the requirement that the appellant has had sufficient notice of the appeal tribunal’s intention to consider making a decision which is less favourable, in order to enable the appellant properly to prepare his case. 
31.	The context was the power of a tribunal to remove or reduce an existing award of a different component of DLA, where Article 15(8)(a) of the Social Security (NI) Order 1998 might apply, or to reduce an existing award of the same component.  In this context, there is a requirement on the tribunal to direct the appellant to evidence, including evidence in the medical records which would come to the tribunal’s attention for the first time on the day of hearing, which might be unfavourable to the appellant’s case.  

32.	Mrs Carty also directed me to CDLA/4127/2003, a decision of the late Commissioner Williams.  In that case unfairness arose from the alteration of a medical report at the request of a medical officer who had not conducted the examination.  I consider that it is authority for the general proposition that a tribunal must act fairly, but I do not find it of assistance in the present case. 

33.	A tribunal, it seems to me, is not under any particular obligation to draw the attention of an appellant or representative to favourable evidence in the medical records.  It is an expert tribunal, with a medical member, which can be expected to draw the appropriate conclusions from medical evidence, favourable or otherwise.  Fairness requires that it should “put” aspects of evidence which are unfavourable to an appellant in order to elicit relevant contrary evidence or a submission in response.  I do not see any basis for holding that it should also be under any obligation to highlight favourable evidence for a submission, however inexperienced a representative might be. 

34.	Medical records are prepared by and for persons with medical qualifications in the course of their professional duties.  Whereas the tribunal panel includes a medically qualified member who can help the tribunal members to understand medical evidence more fully, there are clear difficulties for a non-medically qualified representative.  It is understandable to me that a representative might decline the offer to view them when they are produced a short space of time prior to a tribunal hearing.  However, the medical records do not belong to the tribunal.  Rather they are material in the control of, or at least accessible to, the appellant, who has a statutory entitlement to access them.  There is nothing to prevent a representative from obtaining any medical records independently many weeks before a hearing, with the appellant’s consent, in order to peruse and fully understand them.  If necessary, advice could be sought about their content from appropriately qualified people.  On the basis of the appellant’s medical records first becoming available to the representative on the day of hearing, Mrs Carty referred to the representative being “ambushed” by the tribunal.  However, it appears to me that the representative – and those supervising her – made choices in the conduct of the proceedings which led to the situation complained about. I do not consider that the tribunal can be faulted for that exercise of choice. 

35.	Mrs Carty advanced submissions relating to a number of the factual findings of the tribunal.  It is an error of law if a tribunal has based a conclusion on no evidence, or has reached a conclusion on the evidence which no reasonable tribunal could reach.  Submissions which seek to reargue the facts do not raise errors of law.  Equally, under the principle in E v Secretary of State for the Home Department [2004] EWCA Civ 49, a mistake of fact may amount to an error of law.  However, it would have to be shown that the mistake of fact would probably have an important influence on the outcome of the appeal and that the evidence establishing it appears credible.  

36.	Mrs Carty made a submission referring to the matter of distorted fingers in the appellant’s left hand.  She relied on a sentence in the statement of reasons where the tribunal stated  “Nothing in GP records indicated distorted fingers as claimed by the appellant”.  She counters this by referring to an entry in the medical records from 1991 indicating clawing of the 4th and 5th fingers of the left hand, and another relating to decompression of the left ulnar nerve in 1995.  Another reference to clawing of the little finger and ring finger of the left hand is made in the GP records in 2007.   

37.	However, the current problem with the left hand, appearing from the EMP report is flexion deformity affecting 1st-3rd fingers of the left hand.  The appellant’s dominant hand is the right hand. He had claimed problems cutting up food at mealtimes, and difficulty preparing a cooked main meal.  The EMP had found slight impairment of the hands which did not give rise to a need for help cutting up food or preparing a meal.  The tribunal relied upon this assessment and made a reasonable finding on that basis.  While I accept that the sentence quoted by Mrs Carty sits oddly in the context, the tribunal has made a rational finding and I do not consider that any material error of law arises. 

38.	Mrs Carty further referred to back pain. As appears in the record of proceedings, the medical member of the tribunal had put to the appellant in the course of the hearing that “MRI and CT scans in fact are clear. Showed no narrowing of the spine and no bulging discs”.  Mrs Carty submitted that a CT scan in 2001 showed spinal stenosis, and that a rheumatology report in 2007 referred to an MRI scan, saying that “the underlying back pain and spinal stenosis is a major problem and may be contributing to non specific arthralgia and myalgia generally, particularly in association with his sleep disturbance, low mood and poor concentration”. 

39.	The tribunal says in its statement of reasons that “a recent MRI of the spine indicates that there is no narrowing of the spine and no bulging discs”.  It goes on “Further GP records do not indicate the regular prescribing of analgesia regarding back or any other pain”, albeit that an anti-inflammatory was used.  It noted the appellant’s own evidence that he could walk for a few minutes when not bad and that he reported to the EMP that he could walk 10 minutes for most of the time.  It found that the clinical evidence of the EMP and the GP records did not indicate a virtual inability to walk, apart from periods when gout or back pain flared up. 

40.	The tribunal was entitled to have regard to the recent MRI report. It placed, however, most weight on the evidence of the EMP and GP records when assessing functionality.  There is nothing erroneous in law arising from the statement of the tribunal regarding the recent MRI, regardless of how the MRI in 2001 may have been interpreted.  The tribunal was not directly concerned with the precise diagnosis of the medical condition affecting the appellant’s back, but rather the functional restrictions arising from it.  It made a reasonable assessment of those. 

41.	Mrs Carty generally submitted that the tribunal erred in its assessment of the appellant’s credibility.  She submitted that the findings in relation to the appellant’s left hand and his back pain affected its assessment of his credibility.  She further notes that the tribunal put to the appellant an entry from his medical records to the effect that he cancelled an appointment in 2014 as he was making hay. It was explained that he was not making hay, and did not have the equipment to do this, but was waiting for someone to arrive with the equipment.  

42.	However, the tribunal based its assessment of the appellant’s credibility on the contradictions between his statements to the tribunal and his statements to the EMP.  It was suggested by the appellant’s partner at hearing that he had painted a brighter picture to the EMP than was the case, but the tribunal did not accept that. It placed most weight on the clinical assessment of the EMP.  It does not appear that the tribunal placed any weight on the issue of hay making. 

43.	Finally, Mrs Carty submitted that the tribunal did not give adequate weight, and erred in its approach, to the appellant’s risk of self-harm.  She referred to the issue of the appellant’s depression. She submitted that the tribunal did not give the appellant an opportunity to respond to evidence extracted from the GP records.  She submitted that evidence of suicidal ideation was present during the period relevant to the appeal. She submitted that the tribunal was wrong to place weight on the absence of any instances of self-harm in the past.  She submitted that the tribunal was wrong to assess that the expression of suicidal thoughts and self-harm was not the same thing as carrying them out.

44.	The tribunal accepted that the appellant was depressed. He was attending a community psychiatric nurse, who reported suicidal thoughts but no self-harm or suicidal behaviour.  He had been prescribed the anti-depressant Efexor to which the GP indicated he had a good response.  It does not appear to me that the tribunal has made an irrational finding in relation to the appellant’s mental health. 

45.	It appears to me that much of the submission in this case simply seeks to reargue the facts as accepted by the tribunal.  I do not accept that the evidence compelled a different conclusion to that reached by the tribunal. I therefore disallow the appeal. 

	(signed) O Stockman

	Commissioner

	29 March 2018